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Friday, September 29, 2006

Are We Ready for the Roberts Court?

Global warming, school desegregation, abortion, and punishing tobacco industry fraud.

These are some of the contentious issues the Supreme Court will be addressing when it ushers in its 2006-07 term next Tuesday. Movement conservatives are crossing their fingers that the new duo of Chief Justice Roberts and Justice Alito will use these cases to drive the law hard to the right – and sweep away some important precedents along the way.

If the last term was any indication, they may not have to keep their fingers crossed for long. Indeed, court watchers like the Los Angeles Times’s David Savage are openly wondering whether the new Roberts Court “will … seek the right result or the right’s result?” A conclusive answer to that question is probably a few years off. But the upcoming term is going to give us a much better sense of things.

Here’s what the big cases are about – and what you might expect to see happen in them:

Massachusetts v. Environmental Protection Agency: The EPA’s slacking could leave us all under water.

A coalition of 12 states, three cities, an island government, and numerous environmental organizations are urging the EPA to
regulate global warming-inducing greenhouse gases. Researchers have concluded that global warming is triggering an observable increase in hurricanes, floods, droughts, and heat waves. The scientific community and former EPA heads under Nixon, Ford, Reagan, Bush I, Clinton and Bush II all agree that the EPA needs to take action.

But President Bush’s current EPA recalcitrantly insists it doesn’t have the power. This, despite the plain language of the Clean Air Act, which says the EPA shall regulate “any air pollutant” that can “reasonably be anticipated to endanger public health or welfare.” How is the administration getting around this clear directive? By rejecting generally accepted science linking emissions and global warming (sound vaguely familiar?) and by asserting it can make policy in spite of what Congress directs.

Commentators believe the Court may sidestep the issue of the Bush EPA’s hands-off approach to climate change and rule instead that none of the parties have “standing” (the right to bring the case) since EPA regulation wouldn’t, by itself, solve the whole crisis. Precedent should compel the Court to reject this result.

But the commentators could have a point. Curbing access to the courts by environmental interests – including access authorized by Congress – is one of the signatures of Justices Scalia and Thomas. And Justice Alito joined perhaps the harshest environmental standing decision ever written, one that required individuals to show harm to the environment before being permitted to file suit. The Supreme Court decisively rejected that view by a 7-2 vote in 2000, with – surprise, surprise – Scalia and Thomas dissenting.

That means Chief Justice Roberts and Justice “swing vote” Kennedy are holding all the cards, and they haven’t clearly revealed what they’ve got. On one hand, Kennedy toed the Scalia-Thomas hard-line in a landmark 1992 opinion dubbing environmentalists’ claims nothing more than “generalized grievances” unworthy of judicial resolution, and Roberts wrote a law review article embracing that opinion. On the other hand, Kennedy signed onto the majority in the 2000 decision featuring Scalia and Thomas in dissent. Then again, in that same case, he concurred to suggest he might have sided with Scalia and Thomas if the standing issue had been presented differently.

No one knows where Roberts would have come out in that case. But it’s at least possible he’s with Justice Kennedy on the issue. Which leaves room for hope, particularly given the view Roberts expressed during his confirmation hearings that federal judges ought to respect the will of Congress.

Parents Involved in Community Schools v. Seattle School District #1; Meredith v. Jefferson County Board of Education: Voluntary school desegregation efforts find themselves in jeopardy.

Brought by white parents of public school children in Seattle and Louisville, this case may determine whether the Court will categorically prohibit long-running efforts to ensure schoolhouse diversity. It deals with the constitutionality of assigning children to elementary and secondary schools based in part on their race. The outcome may determine whether the promise of Brown v. Board of Education is dead or alive.

The Court will have to grapple with whether to apply, dramatically narrow, or flat-out overturn a 5-4 decision from 2003 that preserved affirmative action practices in higher education. If the Court applies that precedent, public schools may be able to maintain voluntary desegregation policies. If it doesn’t (which is what the right fervently hopes), the country will come to understand even more quickly than last term what the substitution of Justice Alito for Justice O’Connor means.

Arch-conservative non-profit law firms like the Pacific Legal Foundation, the Competitive Enterprise Institute, and the Center for Individual Rights have pushed this case. Now the Bush administration is on board, too.

Justices Ginsburg, Breyer, Souter, and Stevens are expected to respect local governments’ judgment that the goal of classroom diversity justifies flexibly using race as one of several factors in making school assignments, particularly in places with segregated housing patterns. Justices Scalia and Thomas, on the other hand, are certain to take the activist route and vote to override the will of local, popularly elected officials. Justice Kennedy probably will, too, as he’s never been a fan of race-conscious policies, even to remedy discrimination.

That leaves our two newest justices. And we already have a pretty good idea where they’re headed. A fierce opponent of anything remotely resembling race-consciousness while serving in the Reagan administration, Chief Justice Roberts declared in last term’s big voting rights case, “It is a sordid business, this divvying us up by race.” Justice Alito joined that opinion. What’s more, Alito stridently criticized race-conscious policies in the Reagan administration, saying he was “particularly proud” of his efforts to squelch affirmative action programs.

Unless Roberts and/or Alito defer to precedent and break from what they’ve previously written, voluntary school desegregation could soon be a thing of the past. Which, in the Louisville case, is pretty ironic – until 2000 that school district was under a 25 year-long court order requiring it to use race as a factor in school assignments.

Gonzales v. Carhart, Gonzales v. Planned Parenthood: Can Congress get in between women, their health, and their doctors?

A federal law prohibits doctors from performing specific types of abortions, referred to by the anti-abortion movement as “partial birth-abortions.” These include certain second-trimester abortions. The law makes no exception to preserve the health of the woman. Congress passed it in 2003 as a direct challenge to the Court’s hotly contested decision in Stenberg v. Carhart, which struck down an almost identical Nebraska statute by a 5-4 margin, with Justice O’Connor casting the deciding vote.

Based on Stenberg, the Second, Eighth and Ninth Circuits all have agreed that the 2003 law is unconstitutional. What’s at stake in this case is not just Stenberg’s continuing vitality, but the continuing vitality of the long-standing idea that doctors, rather than legislatures, should decide whether a medical procedure is necessary to protect a woman’s health.

A regular who’s who of conservative activists has filed friend-of-the-court briefs asking the Court to uphold the abortion restrictions – Pat Robertson’s American Center for Law and Justice, James Dobson’s Focus on the Family, Tony Perkins’ Family Research Council, and Phyllis Schlafly’s Eagle Forum, to name a few. Some, like the Foundation for Moral Law, Inc., are specifically asking the Court to overturn Roe v. Wade.

Since seven of the current justices decided the same issue just a few years ago, there is little doubt about their votes here, especially given the stridency of the Stenberg dissent, written by Justice Kennedy. So expect Justices Souter, Breyer, Ginsburg and Stevens to rebuff Congress’s direct challenge to Stenberg, and look for Justices Kennedy, Scalia and Thomas to ratify it. The question on everyone’s mind is whether Chief Justice Roberts and Justice Alito will stand by what they respectively – and repeatedly – said about the importance of precedent during their confirmation hearings.

This is where the rubber meets the road, because both justices have previously rejected the very notion of abortion rights. As a political appointee in the Reagan and Bush administrations, Roberts denounced the right to privacy, on which Roe v. Wade is premised. In a case not even implicating Roe, he co-authored a brief stating that “Roe was wrongly decided and should now be overruled.”

Justice Alito’s record is even more stark. In the Reagan administration, he expressed his personal belief that the Constitution doesn’t protect the right to abortion and advocated a strategy of eventually overturning Roe while “in the mean time mitigating its effects.” As an appeals court judge, he would have upheld a spousal consent law the Supreme Court struck down. He also grudgingly concurred in following Stenberg to invalidate a New Jersey abortion ban because, as a lower-court judge, he had to. As a Supreme Court Justice, he is not similarly bound.

Last term Chief Justice Roberts joined an opinion declaring that “the rule of law demands that adhering to our prior case law be the norm.” For him and Justice Alito, we’ll soon see just how firm that norm is.

Philip Morris USA v. Williams: Damages limits could insulate wayward companies and threaten consumer access to courts.

In a civil lawsuit, compensatory damages are meant to cover the actual harm suffered by someone who’s been injured. Punitive damages, meanwhile, serve the distinct purpose of punishing a defendant for particularly malicious misconduct. In this case, brought against tobacco giant Phillip Morris, the jury awarded $821,000 in compensatory damages and $79.5 million dollars in punitive damages to a widow whose husband, a smoker, died of lung cancer.

The issue here is whether the punitive damages award, which was intended to punish Phillip Morris for a long pattern of hiding the dangers of smoking, is unconstitutionally high. The Supreme Court has said that it’s generally unconstitutional for juries to award punitive damages greater than nine times the compensatory damages. Here the lower court found Phillip Morris’s conduct so reprehensible that it approved a much higher ratio. Phillip Morris’s big business allies, including the National Association of Manufacturers, are weighing in on this case to change that.

If the Court strikes down the jury’s award and sets forth mandatory damages ratios or something like them, it will make consumer protection, housing discrimination and other small compensatory damages cases financially infeasible for injured parties to pursue, leaving big corporations with an economic incentive to cut corners.

The justices’ alignment in this case is likely to break from what one typically expects. Justices Scalia, Thomas and Ginsburg will probably uphold the jury verdict, all having argued that the Constitution’s due process clause places no limits on punitive damages. Given his penchant for narrowly interpreting the due process clause on the Third Circuit, Justice Alito may go their way. But if he’s worried about extending the liability of corporations, as he appeared to be on the appeals court, he may not. The other justices have been willing to limit damages in some cases, but it’s not clear whether they’ll do so here.

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