The Supreme Court Is Back, With All New Cases Ripped From Today's Headlines

The U.S. Supreme Court opens its 2006 session tomorrow--the High Court's first full term with its two new members, Chief Justice John Roberts and Associate Justice Samuel Alito. In his first months on the bench, Roberts made a pretty big first impression. Last term he persuaded his squabbling colleagues to come to unanimous decisions in 37 of 82 cases. Of course, in his past life as a litigator, Roberts spent plenty of time observing the Justices in their natural habitat. Over the years, he argued 39 cases before the Supremes. "We've never had a chief justice who earned his living figuring out how to get five justices to agree with him," says Walter Dellinger, former solicitor general in the Clinton administration. But Roberts may have a tougher time preserving that kind of unity this time around. This fall the court will hear cases on tendentious issues including so-called "partial-birth abortion," affirmative action and global warming. Roberts could find some common ground by aiming for narrow rulings rather than sweeping ones. But these are cases that don't lend themselves to compromise.

Once things get going, it's not Roberts but Justice Anthony Kennedy who may get a lot of the attention. Since Justice Sandra Day O'Connor's departure, Kennedy has emerged as the new swing voter. That could put him in a bind in the abortion cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood, set to be argued next month. At issue: whether Congress has the authority to ban the procedure often called "partial-birth abortion." If the rest of the justices stay true to form, Kennedy could find himself in the old O'Connor role of casting the tie-breaking vote. He's gone both ways on abortion in the past. In the 1992 landmark case Casey v. Planned Parenthood, Kennedy sided with O'Connor when the court upheld a woman's basic right to an abortion by a vote of 6-3. But he later took the opposite tack in a 2000 "partial-birth" case. O'Connor argued that that a ban on the procedure must allow an exception for the health of the mother. Kennedy disagreed a health exception was needed, but O'Connor prevailed in a 5-4 split.

Now Congress is trying to up-end that 2000 ruling with a federal law that declares the "partial-birth" procedure is never necessary to preserve the health of the mother. Will Kennedy give the right the vote it needs to impose the biggest restriction on abortion since Roe? He could theoretically reverse his own stance by citing the judicial principle of stare decisis, which gives extra weight to preserving the status quo set forth in earlier cases--like O'Connor's 2000 ruling. But if Kennedy doesn't change course, he'd likely provide the crucial fifth vote to uphold the federal law and give anti-abortion groups a win. In past terms, conservatives have been outraged by what they see as Kennedy's "judicial activism" in siding with the court's liberal bloc. "Justice Kennedy has consistently been a swing voter and there's no indication he will be any different this term," says Leonard Leo, executive vice president of the conservative Federalist Society. Of course, if Kennedy "swings" his way this time around, you won't find Leo rushing to the cameras to complain.

The Supreme Court Is Back, With All New Cases Ripped From Today's Headlines | News