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DEBORAH AMOS, host:
And I'm Deborah Amos, in for Renee Montagne on assignment in Afghanistan.
It's the first Monday in October, the traditional opening day of a new Supreme Court term. Last term, the court seemed to tread water in most of its rulings, giving only occasional hints that a conservative revolution was waiting to take off.
In fact, the conservatives were in the minority in the last term's biggest case when the justices struck down President Bush's military tribunal system.
This term, however, is expected to be very different, as NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: For most of the last term, Justice Sandra Day O'Connor, the court's most celebrated centrist, continued to participate in court rulings as she awaited the confirmation of her replacement, Samuel Alito. With the court's membership in flux, the newly installed chief justice, John Roberts, succeeded at least partially in getting some rare anonymity, even in controversial cases. And he did it, by and large, by taking minimalist steps that left bigger issues to be resolved later.
But the court's membership is no longer in flux. The block of very conservative justices is now four-strong and newly energized. Gone is Justice O'Connor, replaced by the far more conservative Justice Alito. And now it is Justice Anthony Kennedy who personifies the center of the court - Justice Kennedy, who in recent years has sided with the court's conservatives of the hot-button issues of affirmative action and bans on certain abortion procedures.
Not coincidentally, those issues are back before the court this term. And the question is whether there's a new conservative majority willing to reverse past decisions it thinks were wrongly decided.
Supreme Court advocate Tom Goldstein teaches at Stanford and Harvard Law Schools.
Professor TOM GOLDSTEIN (Professor of Law, Stanford University): We're going to find out whether this is the year that we will look back in through history and say the conservatives finally got the Supreme Court they'd been trying to get for 20 years.
TOTENBERG: The cases that will most acutely test the court's views involve issues decided since 2000 by five to four majorities with Justice O'Conner casting the fifth and deciding vote. One struck down a state ban on what abortion opponents call partial birth abortion, and the other upheld an affirmative action program for admission at a state university.
This term, the issues are back in different forms. First, abortion. The court in 2000 struck down a state ban on so-called partial birth abortions because the court said the procedure is sometimes the safest one for a pregnant woman and there was no health exception in the law. Moreover, the court said, the state law was so broadly written that it could be used to prosecute doctors for almost all surgical abortions in the second trimester.
Three years later, Congress adopted a nearly identical law and made legislative findings that such procedures are never medically necessary. That assertion was disputed in court by medical experts, even experts called by the Bush administration, and the law was struck down in the lower courts. Now it's back before the Supreme Court.
The affirmative action question before the court involves whether school districts in Seattle, Washington, and Louisville, Kentucky, can use race as a factor in assigning students to grades K-12 in order to achieve racial diversity in student bodies and to prevent racially segregated housing patterns from also creating racially segregated schools.
Three years ago, Justice O'Conner wrote the court's decision, reaffirming that diversity in higher education is a legitimate goal, and, as the court had 25 years earlier, the court majority ruled that race could be one of many factors in deciding who got into state colleges and universities.
Now the question is whether the same rationale can apply to secondary schools. Georgetown Law Professor James Forman is a former O'Conner clerk.
Professor JAMES FORMAN (Professor of Law, Georgetown University): Justice O'Connor, in a very deep, unreal way, got that diversity mattered.
TOTENBERG: The question, he notes, is whether without her there are five votes for that proposition.
In both the abortion and affirmative action cases, the conventional wisdom is that the court will likely backtrack from its previous rulings. On both issues there is ample circumstantial evidence, indicating that the court's two newest members, Roberts and Alito, will vote to some extent with the court's other two conservatives, Justices Scalia and Thomas, who have argued for a reversal of all past decisions legalizing abortion and affirmative action.
Last term, for instance, in a voting rights case, Chief Justice Roberts filed a strongly worded dissent to an opinion that ruled a Texas redistricting plan had illegally diluted Latino voting strength. Remarked Roberts, it is a sordid business, this divvying up by race.
In that case, Roberts was dissenting from an opinion written by Justice Anthony Kennedy. But on the abortion and affirmative action issues before the court this term, Kennedy is on record as siding with the conservatives and dissenting from the more centrist O'Connor view that until now has prevailed. Indeed, as Pepperdine Law School Dean Kenneth Starr observes, Kennedy's dissent in the so-called partial-birth abortion case six years ago was one of his strongest.
Mr. KENNETH STARR (Dean, Pepperdine Law School): It was clear that he was quite wounded jurisprudentially, and at seemingly a moral and almost personal level as well.
TOTENBERG: Kennedy also dissented from O'Connor's affirmative action opinion. So on these two subjects, unless he changes his mind from some reason, there look to be five votes to reverse the lower courts and possibly some of the Supreme Court's past rulings as well.
Many conservative scholars have been looking forward to this day with great anticipation. University of Minnesota law professor Michael Paulsen argues that the right course is to overturn those past rulings.
Professor MICHAEL PAULSEN (Professor of Law, University of Minnesota): I think that as a practical matter it has got to be the case that each individual justice must be free to vote his conscience as to what is the correct understanding of the Constitution. I don't think we would want to expect a justice to adhere to a position just because it was decided before if the justice is otherwise convinced it is wrong.
TOTENBERG: But the doctrine of deciding cases based on past rulings is a foundation of the law. Indeed it's always been thought to represent the conservative approach.
In fact in 1992, when the Supreme Court reaffirmed Roe v. Wade, the landmark abortion decision, three of the justices in the majority - O'Connor, Kennedy and Souter - indicated they would likely not have ruled that way 19 years earlier, but that Roe had become a staple of the law, relied on by a generation of women and that the doctrine of respecting precedent means having a firm foundation that doesn't change with the composition of the court.
The question facing a justice then, particularly a new justice but also a justice whose dissented in the past, is what is the obligation when presented with an issue that the court has decided before and, in the view of the justice, decided wrongly? Is the obligation to stability in the law or correcting course?
There is less emotional baggage but huge practical consequence to two environmental cases testing the meaning of the Clean Air Act. The most high profile of these asks whether the Bush administration has illegally abdicated its duty to regulate certain emissions that contribute to global warming.
The Clean Air Act requires the regulation of all pollutants that affect health and climate. But the Bush administration contends the act does not authorize regulating global warming pollutants, and that if did it would violate the president's authority to make other policy choices. A group of states is suing to force regulation, contending that the failure to do so is ruining the state's air.
Also this term is a case - the third the court has taken up in recent years -testing when punitive damages are unconstitutionally excessive. In the past, the court has suggested that it would be a rare case that would justify punitive damages more than 10 times the economic harm caused.
In this case brought by the family of a cigarette smoker, an Oregon jury awarded the family $800,000 in compensatory damages an ordered Phillip Morris to pay $78.5 million in punitive damages to a special fund under Oregon law.
The question is whether the cigarette-makers' conduct is egregious enough to justify such a large award, and whether, as the business community urges, punitive damages should be restricted to no more than four times the actual harm in the case.
There are many more significant cases involving everything from immigration to criminal sentencing and patent law. Court observers expect this term to be a new day for a new conservative court. The question is just how conservative the court will be.
Nina Totenberg, NPR News, Washington.
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