A Mixed Bag for the New Supreme Court As Chief Justice John Roberts arrives and a new high court session begins, the court's docket includes cases involving restrictions on access to abortions, federal vs. state drug laws and campaign finance. Legal analyst Mimi Wesson of the University of Colorado runs down the agenda for Liane Hansen.

A Mixed Bag for the New Supreme Court

A Mixed Bag for the New Supreme Court

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As Chief Justice John Roberts arrives and a new high court session begins, the court's docket includes cases involving restrictions on access to abortions, federal vs. state drug laws and campaign finance. Legal analyst Mimi Wesson of the University of Colorado runs down the agenda for Liane Hansen.


The Supreme Court begins its next term tomorrow with a new chief justice. Earlier this week, 50-year-old Judge John Roberts was sworn in as the 17th chief justice of the United States, the nation's youngest in 200 years. The Senate confirmed him to the lifetime appointment with a 78-to-22 vote. During his confirmation hearings, Justice Roberts carefully sidestepped questions pertaining to his opinion on issues that may come up before the highest court in the land. Now as chief justice, he will, in fact, preside over cases dealing with several of the hot issues raised before the Senate committee, such as abortion and executive power. Mimi Wesson is a professor of law at the University of Colorado and regularly joins us to discuss legal topics, and she's on the phone from Telluride, Colorado.

Good morning, Mimi.

Professor MIMI WESSON (Legal Analyst; University of Colorado): Morning, Liane.

HANSEN: Well, perhaps the hottest of those hot-button issues that Justice Roberts was asked about in the confirmation hearings is abortion, and he parried a lot of those questions during the hearing, but there are a number of cases concerning legal restrictions, on the availability of abortion coming up. There are two you want to talk about. One is actually on the docket, and the other, the solicitor general has asked the court to review. What are the details?

WESSON: As you say, one of these cases is already scheduled. It'll be argued in November, and the solicitor general has asked the court to review the other, and I'm pretty sure it will. Both of them grew out of challenges to the constitutionality of statutes that restrict access to abortion. The case already docketed is about a New Hampshire law that prohibits abortions for minors in the absence of parental consent, and the lower court said this law was unconstitutional because it didn't contain an exception for situations when a pregnancy endangers a minor's health in a medical emergency.

The second case is about a federal statute that prohibits so-called partial-birth abortions, and it was struck down, also, by a lower court, in part because in 2000 the Supreme Court had struck down a state statute barring partial-birth abortions. So the government has requested the Supreme Court to take the matter up, and it's by no means sure that this partial-birth abortion statute will suffer the same fate as the earlier one, in part because the law is a little bit different, both in its content and its history, but in part it's because Justice O'Connor, who voted in the 5-4 majority in the earlier case to strike down the other statute, may not have a vote in this case. If her successor is confirmed and takes a seat on the court before the case is decided, then her vote will not count.

HANSEN: Two other cases involve campaign finance legislation. What are the core issues here? Limits on contributions, free speech?

WESSON: Exactly. The regulation of campaign contributions and spending has always had the asserted purpose of saving our political system from the corruption that comes along with excessive donations, but in the past, several justices have had some sympathy for the claim that these restrictions violate the free speech rights of those who would like to make contributions that don't comply with the regulations. In earlier cases, the court sometimes upheld and sometimes struck down various regulations, so the law is pretty unstable in this area as well. And Justice O'Connor was a deciding vote in the last big case two years ago which, you may remember, upheld most of the restrictions of the McCain-Feingold campaign finance law. Chief Justice Rehnquist also sometimes voted in favor of limits. So changes in the personnel of the court may have a dramatic effect on the law in this area as well.

HANSEN: Now there are two other cases that are dealing with conflicts between federal drug laws and other interests. To explain, in one case it's religion; in the other case it's assisted suicide. Explain the contentious issues in the context of these cases.

WESSON: These are such interesting cases. The religion case is about a church that uses hallucinogens in religious ceremonies, and in the other case the issue grows out of Oregon's decision to allow the distribution of controlled substances when it's to assist in an individual's voluntary suicide. You know, Liane, these cases remind me of last term's decision. You may remember we talked about Raich vs. Gonzales, which upheld federal drug laws that conflicted with California's decision to allow the use of medical marijuana. But the legal premises and procedural background in these cases are somewhat different.

It's always interesting to me that some justices that you'd never suspect of any personal sympathy for controlled substance use find themselves drawn to that side of these cases anyway, and it's because they have a commitment to this complex concept called federalism. Federalism is confusing, but one aspect of it is that it tends to favor states and the choices that they make over federal interests sometimes. Now federalism was not the winner last term in Raich vs. Gonzales, but it'll be a different court this year.

The case about the church raises really thorny issues about whether religious organizations and their members have to obey the same legal rules that others have to comply with. There's a federal statute called the Religious Freedom Restoration Act that requires a kind of super tolerance for religious observances that violate the law. The constitutionality of that law may also be an issue in this case. Some justices are likely to think the important interest in this case is the freedom to exercise one's religion, and others will worry more about the way a grant of special privileges begins to resemble the establishment of a religion, so I think this one will be hard to predict.

HANSEN: Mimi, you're not only a professor of law, but you also write crime fiction, so I know capital crime cases are of interest to you, and there is a case that the court has agreed to review. Tell us about it.

WESSON: Yeah. A couple of cases, really, but the most interesting one to me is a recent decision by the court to review the conviction of a South Carolina man in a capital case after he was prohibited at his trial from offering certain evidence that pointed toward the guilt of someone else of the crime that he was being tried for. So in this and a couple of other cases the court's agreed to hear seems to me it's continuing a trend that we saw starting last term, which is a move toward a bit more intervention and more activity in the area of constitutional criminal procedure in cases where the convicted person's argument goes beyond technicalities and points to the possibility that an actually innocent person might have been convicted of a capital crime.

HANSEN: Mimi Wesson is a professor at the University of Colorado School of Law in Boulder, Colorado. She writes legal thrillers in her spare time and she joined us from Telluride, where she's attending the annual Writers in the Sky conference.

Mimi, thanks a lot.

WESSON: Thank you, Liane.

HANSEN: You're listening to WEEKEND EDITION from NPR News.

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