WASHINGTON -- The Supreme Court will begin its 2005 Term in less than a week with more than the usual sense of anticipation and uncertainty. On a closely divided Court, any new Justice can have a significant impact. This Term, there will be two. The two new Justices, moreover, will be filling particularly important seats. By definition, the appointment of a new Chief Justice carries special significance because of the Chief's unique role on the Court. Justice O'Connor's retirement creates a different void by removing a critical swing vote on a series of issues ranging from race to religion.
Watch ACLU Leaders discuss the whistleblower and reproductive freedom cases, among other issues in the 2005 term.
Adding to the uncertainty, it is not clear what role Justice O'Connor intends to play given her commitment to remain on the Court until her successor is chosen. Presumably, she will continue to hear cases until her retirement becomes effective. It is much less clear whether she will be assigned any opinions to write. In any event, her vote will not count on any case decided after she is replaced, and her replacement may well be reluctant to vote on any case argued before he or she was appointed. There is a very real possibility, therefore, that a number of important cases on the early argument calendar will be heard or decided by an eight member Court.
For better or worse, the new Justices will not be allowed to ease into their jobs. The confirmation hearings of John Roberts once again focused the spotlight on the Court's vital role in preserving reproductive rights and, for the first time in five years, there is once again an abortion case on the Court's docket. The ACLU represents respondents in Ayotte v. Planned Parenthood of Northern New England (04-1144), which is scheduled for argument on November 30th.
The issue in Ayotte, which is discussed at greater length in the accompanying statement of Jennifer Dalven, is whether the court of appeals correctly struck down New Hampshire's parental notification law because it does not include an exception for serious medical emergencies short of imminent death. That, in turn, requires the Court to answer two questions. Is an emergency medical exception constitutionally required, as the Court has previously held in other abortion cases? And, if so, does the absence of an emergency medical exception render the statute facially invalid or should the Court try to draft an emergency medical exception that the New Hampshire legislature chose not to adopt? The answer to the former question may say something about the Court's approach
to abortion and the importance it attaches to safeguarding the health of pregnant women and teens. The answer to the latter question may provide a window into the Court's current thinking on how best to address unconstitutional laws.
Before the Term is over, the Court may also be asked to review the constitutionality of the first federal ban on abortion procedures, which was enacted by Congress after the Court struck down a similar state law in Stenberg v. Carhart (2000). Based on Stenberg, the federal ban was declared unconstitutional by three district courts in New York, Nebraska, and California. The Nebraska decision was affirmed by the Eighth Circuit in July. The other two cases are still pending on appeal. If the government chooses to seek review of the Eighth Circuit ruling, the case could be heard this year. If the government chooses to await decisions from the remaining two circuits, the Court is likely to be presented with a petition for certiorari before the summer recess in June 2006.
Finally, on November 30 th , the same day it hears argument in Ayotte, the Court will hear argument for the third time in Scheidler v. National Organization for Women. This RICO action was filed more than a decade ago by NOW and two abortion providers seeking damages and injunctive relief against various anti-abortion groups that had blockaded clinics and engaged in other acts of violence.
In 2003, the Court ruled that the illegal actions of the protestors did not constitute extortion within the meaning of the Hobbs Act and thus did not support an injunction under RICO. On remand, the Seventh Circuit reissued its injunction on the theory that the protestors' illegal actions violated the Hobbs Act for other reasons, even if they did not satisfy the definition of extortion. The question now presented to the Court is whether the Seventh Circuit disregarded the Supreme Court's prior holding. Despite the highly charged context, the Supreme Court's resolution of that dispute is likely to have more to do with issues of institutional authority than reproductive rights.
RIGHT TO DIE
On another hot-button topic, the Court will be quickly plunged back into the legal and emotional maelstrom surrounding end-of-life decisions when it hears argument on October 5 th in Gonzales v. Oregon (04-623). Following the Supreme Court's 1997 decision in Washington v. Glucksberg, which rejected a facial challenge to a state statute banning physician-assisted suicide, the voters of Oregon adopted a Death With Dignity Act that permits terminally ill patients to seek a physician's assistance in ending their life under carefully limited and strictly controlled circumstances.
In 2001, then-Attorney General Ashcroft sought to block implementation of the statute by threatening to revoke the federal narcotics license of any doctor who assisted a patient under the Oregon law. Reversing a contrary interpretation by his predecessor, Janet Reno, Ashcroft issued a policy directive asserting that compliance with Oregon's Death With Dignity Act was not a "legitimate medical use" under the federal Controlled Substances Act. Oregon sued the federal government, and both the district court and the court of appeals ruled that the Attorney General had misconstrued the Controlled Substances Act and exceeded his statutory authority.
The question of whether the Constitution protects a "right-to-die" for the terminally ill patients covered by Oregon's Death With Dignity Act is not directly before the Court. However, the ACLU submitted an amicus curiae brief arguing that the federal government's proposed interpretation of the Controlled Substances Act would, at a minimum, present serious constitutional issues. Whether or not that issue is reached, the case raises interesting questions about federalism and statutory interpretation.
Federalism will also be a central theme in United States v. Georgia (04-1203), which raises the question of whether the Eleventh Amendment bars a state prisoner from suing state officials for violation of the Americans with Disabilities Act. The Court has issued conflicting decisions on related questions in recent years. In 2001, the Court ruled in Alabama v. Garrett that state officials could not be sued for employment discrimination under the ADA. Three years later, in Tennessee v. Lane, the Court ruled that state officials could be sued under the ADA for failing to make their courthouses accessible to people with disabilities.
More generally, the power of the Court to strike down congressional statutes enacted pursuant to the Fourteenth Amendment on the theory that they are not "congruent and proportional" to a documented constitutional violation has created substantial tension between Congress and the Court, as evidenced most recently in the comments of Senator Specter during the Roberts confirmation hearings. This is the latest round in what has become an ongoing battle.
FREE SPEECH/LESBIAN AND GAY RIGHTS
The Court does not yet have any national security, post-9/11 cases on its docket, but it does have several on its doorstep. At its September 26 th conference, the Court will consider whether to grant certiorari in Hamdam v. Rumsfeld (05-184), which involves a challenge to the military commissions established by President Bush to try Guantánamo detainees accused of violating the laws of war. The D.C. Circuit upheld the commissions in an opinion joined by Judge Roberts and, in the process, ruled that the Geneva Conventions are not judicially enforceable.
It is likely, but not certain, that the Court will also be asked to review the Fourth Circuit's recent decision upholding the President's authority to designate and detain Jose Padilla, an American citizen arrested at O'Hare Airport in Chicago, as an "enemy combatant." And, in Edmonds v. Department of Justice (05-190), discussed at greater length in Ann Beeson's accompanying statement, the ACLU has filed a petition for certiorari in an effort to clarify the proper scope of the state secrets privilege, which the Bush Administration has been invoking with increasing frequency.
Sibel Edmonds is a well-known government whistleblower. The Court has already granted certiorari in another whistleblower case, Garcetti v. Ceballos (04-473), which is scheduled for argument on October 12th. Ceballos claims that his First Amendment rights were violated when his supervisors in the Los Angeles District Attorney's Office allegedly retaliated against him after he suggested that a pending prosecution should be dismissed because of police misconduct. Both the District Attorney's Office and the Solicitor General have responded by arguing that the First Amendment does not protect the speech of government employees who are speaking out as part of their jobs. As the ACLU points out in its amicus curiae brief, that approach, if adopted by the Court, would encourage public employees either to remain silent on important matters of public concern or to speak outside the supervisory chain of command. Neither result serves the public interest and neither result is consistent with the First Amendment.
FREE SPEECH/LESBIAN AND GAY RIGHTS
Rumsfeld v. Forum for Academic and Institutional Rights (04-1152), to be argued on December 6th, presents a First Amendment challenge to the Solomon Amendment, which requires universities to permit military recruiting on campus or forfeit their federal funds. The Third Circuit held the Solomon Amendment violates constitutionally protected rights of expressive association because it penalizes universities who want to disassociate themselves from the military's "don't ask, don't tell" recruitment policies. The ACLU amicus curiae brief focuses on a different First Amendment problem, arguing that the Solomon Amendment violates well-settled rules against compelled speech and viewpoint discrimination.
Several other free speech controversies are on the Court's September 26 th conference list. The most important involve campaign finance. The issue in Wisconsin Right to Life, Inc. v. FEC (04-1581), is whether the general ban on "electioneering communications" contained in the Bipartisan Campaign Reform Act can be challenged on an as-applied basis by nonprofit advocacy groups that want an opportunity to show that not every issue ad broadcast prior to an election represents a sham attempt to influence the election or defeat of particular federal candidates. The principal issue presented by the companion petitions in Randall v. Sorrell (04-1528), an ACLU case, and Vermont Republican State Committee v. Sorrrell (04-1530), is whether a state can impose expenditure limits on political campaigns notwithstanding the Court's contrary holding in Buckley v. Valeo three decades ago.
In another high profile election dispute, the pending petition in Johnson v. Bush, (05-212) asks the Court to decide whether felony disenfranchisement laws can be challenged under Section 2 of the Voting Rights Act based on their racially disproportionate impact. The Court's refusal to hear a similar case from the Ninth Circuit last year has set up a clear circuit conflict on the issue. In Jackson v. Perry (05-276), the question presented in the pending petition is whether states can engage in mid-decennial redistricting solely for the purpose of partisan political advantage. Decisions on both petitions for certiorari should be announced sometime in the next few weeks.
The one religion case on the Court's docket so far is Gonzales v. Centro Espirita Beneficiente Uniao de Vegetal (UDV) (04-1084), set for argument on November 1 st . The UDV Church utilizes hoasca, a hallucinogenic tea, in its sacramental ceremonies. No one doubts the sincerity of the church's religious beliefs or the central role that hoasca plays in its religious rites. It is, in many ways, akin to the role played by peyote in many Native American rituals. The federal government has recognized peyote's religious use by creating a limited exemption from the federal drug laws. The government has refused, however, to grant the UDV church a similar exemption that would allow for the importation of hoasca from Brazil.
Faced with this refusal, the UDV church sued, alleging that the government's refusal to accommodate its religious needs violates the Religious Freedom Restoration Act. The government has not challenged the applicability of the RFRA to the facts of this case. But the government has claimed that it has a compelling interest in the uniform application of the drug laws that satisfies its burden of justification under RFRA. The ACLU has joined with a broad range of religious groups in filing an amicus curiae brief arguing that the government has misunderstood both RFRA and the compelling interest test. If the desire for uniformity is sufficient to override a religious claim under RFRA, then any religious claim can be granted or rejected at the government's discretion, a result that is directly contrary to RFRA's underlying purpose.
SEARCH AND SEIZURE
As always, the Court's criminal caseload is a heavy one. In Hudson v. Michigan (04-1360), an ACLU case, the Court will consider whether the exclusionary rule applies when the police fail to comply with the "knock-and-announce" rule prior to searching a home. An argument date has not yet been set. Georgia v. Randolph (04-1067), which will be argued on November 8 th , raises the question of whether one occupant can consent to the search of a common space when the other occupant is present and objects to the search. Maryland v. Blake (04-373), which will be argued on November 1 st , follows several recent cases in addressing whether and how the police can "cure" their failure to comply with Miranda . In Rice v. Collins (04-52), to be argued on December 5 th , the Court will return to the always contentious question of how much deference should be given to state fact-finding in a federal habeas proceeding, which in this case was reviewing a claim of discriminatory jury selection.
Finally, the Court has granted review in two important death penalty cases. In Kansas v. Marsh (04-1170), which will be argued on December 7th, the issue is whether the death penalty can be imposed when a jury finds that the aggravating and mitigating circumstances are in "equipoise." And, in House v. Bell (04-8990), the Court will consider whether a death row inmate who has raised a colorable claim of actual innocence should be allowed to challenge his conviction in a habeas proceeding that would otherwise be barred by procedural default rules.
All of these cases are, of course, important in their own right. But, it is safe to say that the Court's decisions this Term will be scrutinized even more closely than usual to see if they foreshadow the Court's future direction on critical constitutional questions.