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Published: Sunday, 7/31/2005

3 big issues may hinge on who replaces O'Connor on Supreme Court

BY MICHAEL McGOUGH
BLADE WASHINGTON BUREAU

WASHINGTON If U.S. Circuit Judge John Roberts, Jr., is confirmed for a seat on the U.S. Supreme Court, his freshman term will confront him with several issues that have figured in the guessing game about whether he would be a justice in the strict constructionist mold of Antonin Scalia and Clarence Thomas (as conservatives believe) or a pragmatic conservative like Sandra Day O Connor (as liberals hope).

The docket for the court s 2005-2006 term, which begins Oct. 3, already contains cases dealing with abortion rights, discrimination against homosexuals, and the relationship between states rights and congressional authority.

Other issues will be added as the term proceeds, including, perhaps, the constitutionality of a federal law prohibiting partial birth abortions and the adequacy of procedures used to try suspected enemy combatants in the war on terror.

Speculation about how Judge Roberts might rule on these and other matters is complicated by his short paper trail on the U.S. Court of Appeals for the District of Columbia Circuit, where he has sat since 2003, and by the fact that some of the positions he embraced as a lawyer in the Reagan and first Bush administrations such as the conclusion that the Roe vs. Wade decision legalizing abortion should be overruled may not reflect his own views.

Also, Supreme Court observers caution that it often takes a new justice a while to find his or her voice.

With regard to a justice s judicial philosophy evolving, you have to look at the long term and not just the first year, said David O Brien, a University of Virginia political scientist and the author of Storm Center: The Supreme Court in American Politics.

Mr. O Brien noted that Justice O Connor, whom Judge Roberts would replace, evolved over time.

Increasingly, she paid much more attention to the impact of Supreme Court decisions on the daily lives of citizens, such as when it came to the drug testing or arresting a person for a minor traffic violation.

"I suspect Roberts is going to be very low-key at first, independent but generally aligned with Scalia and Thomas and [Chief Justice William H.] Rehnquist," Mr. O'Brien added. "I think we'll be talking about Justice [Anthony] Kennedy as the swing vote on the court."

So far the high court has accepted 37 cases for review in the 2005-2006 term. Following are some of the most significant cases in which Judge Roberts' vote could be pivotal.

On Nov. 30 the court will hear arguments in two abortion-related cases. In Ayotte vs. Planned Parenthood, it will decide whether a New Hampshire law requiring notice to the parents of a minor seeking an abortion is unconstitutional. The 1st U.S. Circuit Court of Appeals in Boston blocked enforcement of the law because it did not contain an exception to protect the health of the woman.

Justice O'Connor was in the 5-4 majority that in 1992 upheld the essential holding of Roe vs. Wade and declared that states could not impose an "undue burden" on women seeking an abortion. Justice O'Connor also joined the court's liberals in a 5-4 decision in 2000 striking down a Nebraska law against so-called "partial birth" abortions because it lacked a health exception.

The second abortion case to be argued on Nov. 30, Scheidler vs. National Organization for Women, is the third installment of a legal dispute stretching back to the 1980s over whether NOW and abortion clinics can sue violent protesters at clinics under a federal racketeering law.

In 1994, the court ruled that NOW and clinics could sue anti-abortion groups, including Operation Rescue and the Pro-Life Action Network, under the Racketeer Influenced and Corrupt Organizations Act, or RICO, even if the activists did not have an economic motive for their tactics. But in 2003 the court threw out a racketeering judgment against the anti-abortion groups on the grounds that the protesters' acts, however violent or intimidating, did not involve robbery or extortion, the main elements of a federal law called the Hobbs Act that the clinics had cited in their lawsuit.

Anti-abortion activists hailed the 2003 decision as a victory and expected the 7th Circuit Court of Appeals in Chicago not only to vacate the judgment against the defendants but also to lift an injunction against protests at clinics. But when the case was remanded to the 7th Circuit that court concluded that four of the violent or threatening acts ascribed to the protesters might still amount to a violation of the Hobbs Act. Joseph Scheidler, one of the anti-abortion activists, asked the Supreme Court to return to the case and repudiate the 7th Circuit's interpretation.

Justice O'Connor was in the majority in both of the previous incarnations of Scheidler vs. NOW, but she dissented in a 1993 decision in which the court ruled 6-3 that protesters who blocked at the entrance to an abortion clinic could not be sued for sex discrimination. The majority accepted an argument made by Mr. Roberts when he was deputy solicitor general in the first Bush administration that since the porters interfered with access by men and women alike there was no discrimination against women as a class. Congress later enacted a law protecting access to clinics.

Because Operation Rescue also was involved in the 1993 case, Mr. Roberts could decide to recuse himself from the Scheidler case.

Justice O'Connor was one of the so-called "Federalism Five" on the court who ruled that two federal enactments violated states' rights: a statute banning the possession of guns near schools and a portion of the Violence Against Women Act that allowed victims of sexual violence to sue their attackers in federal court.

But the states' rights trend started by those decisions has stalled. In June, the court ruled 6-3 that the U.S. Justice Department had the authority to prosecute two seriously ill women in California who used marijuana as a painkiller at the direction of their doctors - despite the fact that California had legalized the medical use of the drug and the women used only marijuana that had been grown in the state. Justice O'Connor accused the majority, which included Justices Scalia and Kennedy, of "rewriting" the Constitution's Commerce Clause, which gives the national legislature, not the states, authority over interstate commerce.

One of the few judicial opinions by Judge Roberts that has inspired controversy is a dissent he wrote when the D.C. circuit refused to rehear a real-estate developer's challenge to the constitutionality of the Endangered Species Act as it applied to an animal that lived only in one state. Judge Roberts complained that "the panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating 'Commerce ... among the several states."

Next term the Supreme Court will decide whether the Commerce Clause empowers the federal government to prevent physicians in Oregon from dispensing drugs to terminally ill people who choose to end their lives. Physician-assisted suicide is legal in Oregon, but the Justice Department convinced the 9th U.S. Circuit Court of Appeals that the federal government had the power under the Commerce Clause to regulate prescription drugs.

How Judge Roberts voted on this case would test the assertion by the liberal Alliance for Justice that he has a "crabbed view of congressional power under the Commerce Clause" that "might threaten to undermine a wide swath of federal protections, including many environmental, civil rights, workplace, and criminal laws."

Another case next term that raises federalism questions concerns an attempt to collect $400,000 owed to a bankrupt bookstore chain by four state-funded colleges in Virginia.

The 11th Amendment says: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state." Therefore, Virginia argued, its higher education system cannot be sued in federal bankruptcy court by the Kentucky-based bookstore chain.

The 6th U.S. Circuit Court of Appeals ruled for the bookstore, holding that Article I of the Constitution gives the federal government jurisdiction over bankruptcy issues and thus created an exception to the immunity granted to states by the 11th Amendment.

Justice O'Connor joined the four other members of the Federalism Five" in a 1996 decision striking down a federal law allowing Indian tribes to sue state governments in federal court if the states would not negotiate with the tribes over gambling rights. If Judge Roberts takes the same view of the 11th Amendment that Justice O'Connor did, the court likely would rule for Virginia in the bankruptcy case.

Finally, the court will decide whether disabled inmates in state prisons may file federal lawsuits under the Americans with Disabilities Act notwithstanding the 11th Amendment.

Last year, with Justice O'Connor deserting the rest of the Federalism Five, the court ruled 5-4 that a defendant in a wheelchair could file suit under the ADA because he was put on trial in a county courthouse that did not have an elevator. The majority held that Congress could abrogate the state of Tennessee's sovereign immunity under its power to enforce the equality provisions of the 14th Amendment.

Next term, in a case from Georgia, the court will review a ruling by the 11th U.S. Circuit Court of Appeals that Congress did not abrogate the state's immunity to lawsuits by disabled prisoners. If Judge Roberts were to join the court's four conservatives in upholding the appeals court, he could re-energize the federalism revolution.

Judge Roberts has drawn criticism from civil libertarians for joining a recent opinion in which a three-judge panel of the D.C. circuit upheld the Bush administration's procedures for military tribunals to try foreign detainees at the Guantanamo Bay Naval Base in Cuba.

But, the first test of Judge Roberts' attitude toward the president's authority as commander-in-chief would come in a very different context. On Nov. 29 the justices will hear arguments in a case challenging a law that requires law schools that receive federal funds to allow military recruiters on campus.

Under a nondiscrimination policy adopted by the American Association of Law Schools, virtually every law school in the nation requires employers to sign a statement affirming that they do not discriminate on the basis of sexual orientation. After law schools turned away military recruiters because of the armed services' policies against homosexuality, Congress passed the so-called Solomon Amendment in 1994 ordering law schools that receive federal funds to welcome military recruiters.

But in 1994 the 3rd U.S. Circuit Court of Appeals in Philadelphia ruled 2-1 that the Solomon Amendment violated the First Amendment rights of the law schools by tying federal aid to the "unconstitutional condition" of violating their principles about nondiscrimination.

In asking the Supreme Court to review the 3rd Circuit ruling, the Bush administration has made two arguments: that the Solomon Amendment does not interfere with free speech because the law schools are free to decline federal funding, and that access for military recruiters is especially important "as we engage in the global war on terrorism."

Contact Michael McGough at: mmcgough@nationalpress.com or 202-662-7575.



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