Abortion And Education Highlight New Supreme Court Docket; National Security Cases Wait In The Wings

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WASHINGTON -- The Supreme Court will be returning to familiar terrain this Term when it considers the constitutionality of the federal Partial-Birth Abortion Ban of 2003, and the use of student assignment plans to achieve racial diversity in Seattle, Washington and Louisville, Kentucky.

At the same time, Congress is currently debating whether and how to comply with the Supreme Court's ruling last June that the Geneva Conventions apply to the war on terror. And, the Bush Administration is increasingly invoking the state secrets privilege in its latest effort to prevent judicial review of its anti-terrorism policies.

It is a critical institutional moment for the new Roberts Court. Neither Congress nor the President should be seeking ways to evade the Court's historic decision in Hamdi v. Rumsfeld, and the Court itself should not be seeking ways to evade its own recent rulings on abortion and education.

In what has become a ritualistic exercise, each Supreme Court nominee is now routinely questioned by the Senate Judiciary Committee on his or her views regarding stare decisis – the legal principle that courts are generally bound to follow their prior decisions. In their confirmation hearings last year, Chief Justice Roberts and Justice Alito each gave what has also become a ritualistic response. Both agreed that prior decisions should not be overruled merely because newly appointed Justices might have reached a different result had they been on the Court at the time.

That principle will be put to the test this Term. On abortion and education, the Court will be revisiting legal issues that it addressed only a few years ago. In two 5-4 decisions, with the now-retired Justice Sandra Day O'Connor casting the pivotal swing vote, the Court rejected Nebraska's effort to ban so-called partial-birth abortions, and upheld the use of race as a factor in the admissions process at Michigan Law School. If the Court is faithful to those decisions this year, it should affirm lower court rulings striking down the federal abortion ban in Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood Federation of America (05-1382). Likewise, in Parents Involved in Community Schools v. Seattle School District No. 1 (05-908) and Meredith v. Jefferson County Board of Education (05-915), it should affirm lower court rulings that racial diversity in public education is a compelling state interest.

One way or another, the outcome of these cases will tell us a great deal about the future direction of the Roberts Court, on these specific issues and on the judicial process more generally. Justice Kennedy is almost certain to play a pivotal role in charting that direction. On a closely divided Court, he cast critical votes last year on cases dealing with partisan redistricting, the exclusionary rule, the death penalty and federalism. There is every reason to assume that his vote will be just as critical this year when the Court takes up abortion and race-conscious student assignment plans. Justice Kennedy was a dissenter in the Nebraska and Michigan cases, putting him on the opposite side from Justice O'Connor. However, he was also a co-author of the stare decisis opinion in Planned Parenthood of Southern Pennsylvania v. Casey, the 1992 case reaffirming Roe, And his institutional role as the Court's ideological fulcrum has undeniably changed since Justice O'Connor's retirement.

In another set of cases now working their way through the lower courts, even the possibility of judicial review has been undermined by the Bush Administration's aggressive assertion of the state secrets privilege in a series of post-9/11 cases involving the National Security Agency's warrantless surveillance program and the CIA's program of so-called "extraordinary rendition." It is unlikely that those cases will reach the Court this Term, but they are almost certainly coming. When they arrive, it is critical for the Court once again to reject – as it did in Hamdan, Hamdi and Rasul, the landmark cases challenging indefinite detention and the denial of fair trials – the Administration's ongoing assault on civil liberties and our system of checks and balances.

Reproductive Freedom

Six years ago, in Stenberg v. Carhart, the Court struck down a Nebraska statute that purported to ban a particular abortion method. With Justice O'Connor in the majority, the Court ruled that the statutory ban was so broadly written that it in fact reached other common methods of abortion performed as early as 13 weeks and, for that reason, created an undue burden on women's reproductive choices. The Court also concluded that the law was unconstitutional because it lacked a health exception. In other words, even if it banned only a single procedure, the law did not permit doctors to perform the prohibited procedure when necessary to preserve a woman's health.

In the face of that ruling, Congress chose to enact a legally indistinguishable ban in 2003. The federal law was challenged in three separate proceedings (only two of which are now before the Court), and declared unconstitutional in all three on the basis of Stenberg.

The Administration is now asking the Court to distinguish Stenberg based on a congressional finding that the prohibited procedure is never medically necessary and the law therefore does not require a health exception. Saying so, however, does not make it so, and congressional findings are not entitled to deference when they are based on a political agenda rather than actual evidence, as the lower courts found. Nor does the congressional finding cure the breadth of the federal law. Nothing has changed since Stenberg except the composition of the Court. Unless Stenberg is overruled, the federal abortion ban cannot be upheld.

Race and Schools

The two education matters on the Court's docket this year arise from challenges to diversity programs in K-12 public schools in Seattle and Louisville. While the school districts differ in the details of their student assignment plans, school officials in both cities made two critical judgments. First, they determined that there were important educational reasons to maintain a racially diverse student body. Second, they concluded that racial diversity required some consideration of race in student assignments.

Three years ago, with Justice O'Connor writing for a slim five-person majority in Grutter v. Bollinger, the Court held that achieving racial diversity in higher education was a compelling state interest and rejected the argument that race could never be considered during the admissions process.

The Seattle and Louisville cases present the same fundamental questions in the K-12 context and should lead to the same answers. If achieving racial diversity is a compelling state interest at the university level, it is hard to imagine why it is not an equally compelling interest in the lower grades. And, if race-neutral alternatives were sufficient by themselves to end racial isolation, we would not be confronting the problem of resegregated urban school districts across America. The issue of narrow tailoring is likely to be a central focus of the Court's deliberations. But narrow tailoring should not mean that school districts must abandon any reliance on race to achieve diversity that experience has shown is otherwise unobtainable.

Criminal Law

In a case with potentially far-reaching consequences for the criminal justice system, the issue before the Court in Burton v. Waddington (05-9222) is whether defendants convicted under federal sentencing guidelines that were declared unconstitutional by the Court's 2004 decision in Blakely v. Washington can retroactively challenge their convictions in a habeas corpus proceeding. In Cunningham v. California, (05-6551), the issue is whether California's sentencing scheme is consistent with Blakely, And, in Whorton v. Bockting (05-595), the issue of retroactivity arises again, this time involving the Court's 2004 decision in Crawford v. Washington, which held that the Confrontation Clause bars the introduction of "testimonial" statements by out-of-court witnesses.

Immigration Law

On the first day of the Term, the Court will hear arguments in two consolidated immigration cases, Lopez v. Gonzales (05-547), and Toledo-Flores v. United States (05-7664), that highlight the degree to which already punitive provisions of immigration law are being stretched beyond reasonable bounds and a fair interpretation of congressional intent. The issue in both cases is whether a state conviction for drug possession that would be a misdemeanor under federal law can nonetheless be treated as an "aggravated felony" for immigration purposes when that designation leads to serious adverse consequences, including ineligibility for cancellation of removal and political asylum.

Prisoners' Rights

In another example of making a bad law worse, the Sixth Circuit has construed the exhaustion requirement of the Prison Litigation Reform Act to mean that a prisoner's federal lawsuit must be dismissed in its entirety if even one claim among many has not been fully exhausted. Moreover, under the Sixth Circuit's judicially crafted rules, a prisoner must demonstrate with more specificity than is normally required in a complaint that each of his claims has in fact been fully presented to the prison grievance system and that each of the defendants was individually identified in the administrative grievance. The validity of those rules, which have little to do with allowing prison officials a fair opportunity to resolve any grievances prior to litigation -- the ostensible purpose of the exhaustion requirement -- will be resolved by the Court in Jones v. Bock (05-7058), and Williams v. Overton (05-7142).

Capital Punishment

There are two death penalty cases on the Court's docket so far. In Lawrence v. Florida (05-8820), the questions before the Court include whether, and under what circumstances, the one-year deadline for filing a federal habeas corpus petition can be extended based on "equitable tolling," an ancient legal doctrine that permits courts to extend an otherwise fixed deadline to prevent obvious unfairness. The ACLU amicus brief argues that "equitable tolling" is appropriate, at the very least, when a state promises to provide death row inmates with quality representation in post-conviction proceedings, as Florida has done, and appointed counsel then fails to file critical pleadings within the prescribed time period.

Ayers v. Belmontes (05-493), which will also be argued on the Court's opening day, focuses on the manner in which California instructed the jury about mitigation when Belmontes was tried and sentenced to death. The catch-all instruction in use at the time directed the jury to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." Belmontes has argued, and the lower court held, that this instruction was constitutionally deficient because it misled jurors into believing that they could not consider the mitigating factor of Belmonte's potential for good behavior in prison if sentenced to life without parole when deciding whether he would live or die.

Employment Discrimination

Ledbetter v. Goodyear Tire and Rubber Co, (05-1074), presents one of those seemingly technical questions of employment discrimination law that has great practical significance. Under Title VII of the Civil Rights Act, a claim of wage discrimination must be filed within 180 days of the discrimination. Historically, that requirement has been understood to permit an employee to challenge the ongoing effects of a discriminatory salary decision even if the initial decision was made more than 180 days prior to filing the claim.

In a departure from past precedent, the Eleventh Circuit ruled otherwise in this case. That means, for example, that a female employee who was hired one year ago at 80 percent of the salary paid to equivalent male employees, but who then received the same percentage increase as her male counterparts on their one-year anniversary, is barred from challenging the fact that she continues to be paid substantially less in total compensation because of the unequal starting salaries.

Looking Ahead

Thus far, the Court has granted review in 31 cases. Even assuming that the docket does not grow, as the Chief Justice has suggested it might, more than half the Court's caseload remains to be filled. Last year gave us a glimpse of the new Court, but it was only a glimpse. Justice Alito did not join the Court until February, and Chief Justice Roberts recused himself from Hamdan, the most important case of the year, because he had participated in the court of appeals decision under review. The one thing that can be said with assurance is that we will have a much better sense of the Roberts Court at the end of this Term than at the beginning.

The ACLU's Supreme Court briefs are online at www.aclu.org/supremecourt