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Abortion, Race and Business Law on Supreme Court’s New Docket

October 2, 2006 at 6:20 PM EDT

MARGARET WARNER: The first Monday in October traditionally is the first day of the Supreme Court term. And with the court’s newest members, Chief Justice John Roberts and Associate Justice Samuel Alito, in place at the outset, this term promises to give a clearer idea of how their additions will shape the court.

Here to discuss the term ahead are: NewsHour regular Marcia Coyle of the National Law Journal; Walter Dellinger, Duke Law School professor and former acting solicitor general under President Clinton; and Douglas Kmiec, professor of constitutional law at Pepperdine University School of Law.

And welcome to you all.

Marcia, are we going to see some real blockbusters this term?

MARCIA COYLE, National Law Journal: Well, Margaret, I’m not sure if any of these cases will achieve the status of “blockbuster” that last term’s decision on the president’s military commissions did, but I do think that there are four types of cases on the docket thus far for very significant types of cases that, as you said, will reveal a lot about the views of the new justices, the importance of Justice Anthony Kennedy as the new center of the court, and the direction of the court in coming years.

And those four cases involve: abortion; and race; a new issue of global warming; and an old issue, the amount of money that juries can award to punish someone for their very bad conduct.

MARGARET WARNER: So abortion, give us a quick thumbnail sketch of those cases and what’s really at stake?

MARCIA COYLE: The Supreme Court will decide the constitutionality of a law Congress enacted in 2003 that bans a second-trimester surgical procedure that critics call “partial-birth abortion.” The court in 2000 actually struck down a very similar law, a state law, because it lacked an exception to protect the health of the woman. This federal law does not have the exception.

The twist here, legal twist here is that Congress made findings that the exception is not needed. Will the chief justice and Justice Alito stand by the 2000 precedent? Or will they defer to Congress’s findings?

Racial and business issues

Marcia Coyle
National Law Journal
[The University of Michigan affirmative action case] was a 5-4 decision. Justice O'Connor was critical to that, just as she was critical to the abortion decision in 2000 that set the stake in the abortion case this term.

MARGARET WARNER: Now, the next area that's very divisive, also decided 5-4 in a recent precedent, racial preferences.

MARCIA COYLE: This is a little bit different type of affirmative action. Here a group of parents of white students sued the Louisville, Kentucky, and Seattle, Washington, school districts because those school districts had a policy of sometimes using the race of the student in order to assign students to particular public schools.

The school district claims it needs those policies to maintain integrated schools. The parents argue -- and the Bush administration argues -- it's blatantly unconstitutional. It could signal the fate of future affirmative action cases.

MARGARET WARNER: And, of course, is it three years ago the Supreme Court did uphold modified kind of affirmative action at a university, University of Michigan?

MARCIA COYLE: It did. It was a 5-4 decision. Justice O'Connor was critical to that, just as she was critical to the abortion decision in 2000 that set the stake in the abortion case this term.

MARGARET WARNER: All right. And briefly, the two cases that the business community is watching so closely, the Philip-Morris case involving punitive damages, and a sort of EPA-related case.

MARCIA COYLE: Right. The global warming issue, first time before the Supreme Court, a coalition of states sued the EPA, Environmental Protection Agency, arguing it had the authority and the responsibility to regulate carbon dioxide emissions under the Clean Air Act.

On the punitive damage case, a widow of a smoker won $80,000 in compensatory damages and $80 million in punitive damages against Philip-Morris. The court has to decide whether that's too much money under the Constitution.

Significance of the term

Douglas Kmiec
Pepperdine University School of Law
Last year, so much of the docket was of unexceptional cases, largely achieved by majority, unanimous rulings. Almost 49 percent of the cases were decided unanimously. These cases are very divisive. They are very likely to be 5-4.

MARGARET WARNER: Walter Dellinger, how significant a term does this look to you?

WALTER DELLINGER, Former Acting Solicitor General: I think it can be very significant, because it's going to be a window into what the new chief justice and Justice Alito are going to be, in terms of how active they're going to be in setting aside precedent, how incrementalist they're going to be.

We have an abortion case that affords an opportunity to see whether they will defer to a decision that was reached earlier, as they often said during their confirmation hearings, or will see this as a new and different case.

MARGARET WARNER: Do you agree, Professor Kmiec, that it's a real window into what this Roberts court is going to be like and more so than last year?

DOUGLAS KMIEC, Pepperdine Law School: Well, I think it is a bit more of a window, Margaret, because last year, so much of the docket was of unexceptional cases, largely achieved by majority, unanimous rulings. Almost 49 percent of the cases were decided unanimously.

These cases are very divisive. They are very likely to be 5-4. And as Walter indicated, they will often pit the precedent of the court against the text of the Constitution. How broadly or narrowly the abortion ruling is written will determine the long-term viability of the Roe precedent. And it may also have effects well beyond that into other substantive areas of the law, as well.

MARGARET WARNER: Professor Dellinger, the importance of precedent, both Justice Alito and Chief Justice Roberts were, in their confirmation hearings, asked repeatedly to what degree they would honor precedent. You agree that, in both the race cases and the abortion case, that's really going to tell us a lot about them?

WALTER DELLINGER: It will tell us a lot. Now, Justice Kennedy will also have to decide, who may be the decisive vote in each of these cases, whether he will defer to precedent.

Take the abortion case. The court held just two terms ago that there has to be a health exception. And they meant by that whether there is a significant body of medical opinion that a given procedure brings with it more safety for some women. If so, it has to be allowed.

Congress has substituted its own, quote, "legislative finding" that it's never necessary. So Justice Kennedy, as well as Justice Roberts and Alito, have to decide whether to defer to what Congress says as a legislative finding over what the court has previously held is a significant body of medical opinion that it is necessary.

And I think, after the Terri Schiavo incident in Congress a couple of summers ago, the court may be wary of allowing Congress to substitute its medical judgment for that that the courts have reached. But it will tell us a lot about whether Justice Kennedy is concerned about the role of the court, though he opposes this technique of abortion...

MARGARET WARNER: He voted with the minority.

WALTER DELLINGER: ... and was vehemently in dissent. He voted in the minority. He's opposed to it. He's philosophically opposed to abortion. He is very strong in terms of the court's authority as an institution and would not, I think, lightly allow Congress to set aside something that the court had done, even when he disagreed with it.

Kennedy vs. O'Connor

Walter Dellinger
Former U.S. Solicitor General
Justice Kennedy is in the middle because sometimes he's on what is seen as the liberal side and sometimes on the conservative side, but he's often not moderate in his views on a particular case.

MARGARET WARNER: Professor Kmiec, do you agree that we can't just look at the precedents, that other things might come into play, say in the abortion or race cases?

DOUGLAS KMIEC: Oh, I do agree that other things come into play. Justice Kennedy will play a pivotal role in the abortion case. He'll play a pivotal role in the race case. He dissented strongly with regard to both of them.

I think he will make the case that both of the cases that are there in the present term are clearly distinguishable from the prior precedence that we have with regard to the race case, for example, not the individualized, careful use of race, looking at the particular characteristics of one person for the purpose of adding diversity to a school environment where diversity is critical, but instead a form of racial engineering, a kind of outright balancing, so that race is used to achieve no more than 15 percent of one race, no greater than 50 percent of another.

This is something that greatly troubled Justice Kennedy in the earlier case. And I think he'll distinguish the two precedents. And the same with the abortion case.

In the abortion case, Justice Kennedy was very frustrated earlier, dissented strongly because he felt that he had achieved a balance allowing the state to regulate, and he felt that, when they struck down the Nebraska limitation on partial-birth abortion, that that was a breach of the agreement that allowed states greater latitude in this area.

MARGARET WARNER: You both mentioned Justice Kennedy, Professor Dellinger, and that he's become essentially or is regarded as the swing vote now, with Justice O'Connor gone. How different, and in what way -- how is Justice O'Connor and Justice Kennedy, how are they different, in your opinion?

WALTER DELLINGER: They are different occupants of the middle seat in the court, because Justice O'Connor was a deeply pragmatic person. She grew up in the West. She liked to make sure that things would work. She decided cases on a very particular basis and often on a very narrow and pragmatic and conscious basis.

Justice Kennedy is in the middle because sometimes he's on what is seen as the liberal side and sometimes on the conservative side, but he's often not moderate in his views on a particular case. He's the strongest First Amendment advocate on the court since Hugo Black. When he's opposed to abortion, he's strongly opposed to abortion.

When he writes the pro-gay rights decision in Texas, he writes it very strongly, so that the court may shift more in a more volatile way than with Justice O'Connor in the middle of the court. I wonder if Doug -- actually, I'd like to hear what his take is on that.

Other possible cases

MARGARET WARNER: And so would I. Professor Kmiec, Kennedy versus O'Connor?

DOUGLAS KMIEC: Well, thank you both for asking. I think Walter is quite correct, that Justice O'Connor was a problem-solver. She wanted a particular outcome, and she staked out that outcome, which often allowed the other members of the court to bargain with her to get the language that she would find acceptable.

Justice Kennedy is a thinker. He's very deliberate, and he often thinks through a problem right through the very last moment. He has been known in court records, for example, to change his mind at the last moment. And it's a sign of someone who is very, very careful, but also is very, very thorough.

But it makes it more difficult for other members of the court to attract his vote and to secure it for one outcome or the other. But the one thing we know for sure: It's always in play.

MARGARET WARNER: And, Marcia, finally, we haven't -- there's nothing on the docket now, on the cases that really seemed so dominant the last term, having to do with the way the administration wages the so-called war on terror. Could such cases, nonetheless, come before the court this term?

MARCIA COYLE: Depending on how quickly the lower courts act, there is a possibility that the challenge to the president's domestic surveillance program could get to the court this term. And we should note, too, that the first challenge has been filed just today in the lower courts against the brand-new military commission law.

MARGARET WARNER: All right. Marcia Coyle, Professor Dellinger, and Professor Kmiec, thank you all.

MARCIA COYLE: Thank you.