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PINE BLUFFS — The U.S. Supreme Court opened for business on Monday, October 2nd. Now referred to as “the Roberts Court” after its new Chief Justice, John Roberts, Jr., its docket is crammed with socially significant cases.
This term promises to be its most attention-grabbing in years. Cases range from deciding the constitutionality of race-based enrollment plans in Seattle and Louisville, to whether the Environmental Protection Agency can be forced to regulate emissions of greenhouse gases from motor vehicles. In between, it’ll decide whether a $79 million verdict against Philip Morris favoring the widow of a former chain smoker violates due process constitutional guarantees, whether unions may spend fees collected from nonunion members on partisan political campaigns without consent, and at least two abortion-related battles.
PRO-LIFE ISSUES THIS TERM
Of importance to the Pro-Life Movement are two cases. The first, Cano v. Baker, involves Sandra Cano, who was the Mary Doe of Doe v. Bolton, companion case to Roe v. Wade in 1973. The second arrives before the Justices on November 8, a day after the elections. It’ll examine the constitutionality of the Partial Birth Abortion Act.
COURT SENDS WORRISOME SIGNAL
The Cano case was decided October 11th. Recall that Roe ended most state restrictions against abortion, and Doe legalized abortion throughout the entire nine months of pregnancy. Without comment, the Court refused to hear it, thus affirming the previous ruling and sending decidedly worrisome signals to those hoping the Roberts Court would “seize the day” and begin chipping away at these lynchpin pro-abortion cases.
The second case involves the constitutionality of the Partial Birth Abortion Act, passed by the Republican controlled Congress in 2003. The High Court had previously ruled this procedure could not be banned by states unless legislatures provided an exception where the mother’s health was threatened. The Justices had ignored expert medical testimony presented at the Congressional hearing, that there was never a need for this procedure under any circumstances.
Reacting quickly, Congress sought to override the court-imposed requirement by declaring in its law that there were “no circumstances when a partial birth abortion is medically necessary. Since no circumstances exist, there is no need for a health exception.”
Whether the high court will defer to Congressional expertise regarding what’s medically necessary or attempt to set the standard itself, is an eye-popping question. If it wants to uphold this federal law, the Court could bow to Congressional factual findings. In its brief, the Bush Administration urges this course of action, citing “. .. . the long-standing principle that Congress is better equipped than courts to make factual findings that inform the constitutionality of federal statutes.”
CENTRIST ANTHONY KENNEDY?
Another fascinating aspect this term is the possible emergence of Justice Anthony Kennedy as a centrist power on the court. If this happens, he could provide the swing vote in key cases.
Former Solicitor general and Pepperdine Law School Dean, Kenneth Star is watching this development: “It’s difficult to overstate the significance of that,” he said. “All eyes will be on Kennedy [this term].”
Why? In 2000, by a 5-4 decision, the Court struck down a Nebraska statute outlawing partial birth abortion. In his dissenting opinion, Kennedy wrote: “The majority views this procedure from the perspective of the abortionist, rather than [that] of a society shocked when confronted with a new method of ending human life.” He stressed his opposition to “. . . the decision, the reasoning, and the judgment.”
Does this mean Kennedy will vote to uphold the Partial Birth Abortion Act? Not necessarily. His career-long adherence to stare decisis — the practice of affirming precedent even when one disagrees with it — might prevent that. If he follows his dissent in the Nebraska case, thumbs up for the PBAA. If he goes with stare decisis, thumbs down.
WAITING IN THE WINGS
Enter newly-appointed Justice Samuel Alito, Sandra Day O’Connor’s replacement. During the Rehnquist years, O’Connor’s swing vote often decided abortion related cases against a pro-life outcome. Alito is pro-life. Will he be instrumental in tipping the balance of power away from the Court’s four-justice liberal wing? Stay tuned. This promises to be a mesmerizing term in which the Roberts Court may clearly define itself by shifting to the right. Such a shift would involve moving away from strict application of stare decisis, and toward a willingness to overrule precedent when necessary.
Anthony J. Sacco, a writer, licensed private investigator, and author of two novels — The China Connection, and Little Sister Lost — holds degrees from Loyola College and the University of Maryland Law School. His articles have appeared in the Washington Times, Baltimore Sun, Voices for the Unborn, the Catholic Review, WREN Magazine and the Wyoming Catholic Register. Visit his website at www.SaccoServices.com.