2006 Term Begins Monday

[A18]

Discuss. Major cases include the following.

Partial-birth abortion, health exception:
Gonzales v. Carhart
Gonzales v. Planned Parenthood

School diversity cases (use of race in assigning students to public schools):
Meredith v. Jefferson County Board of Education
Parents Involved in Community Schools v. Seattle School District #1

Greenhouse gas case:
Massachusetts v. Environmental Protection Agency

And a bunch of criminal procedure cases that aren't exciting enough to talk about.

I predict conservative victories in the first four. There was no circuit split, and so the fact that cert. was granted is notable.

Of course, perhaps cert. was only granted in the partial-birth abortion cases because a federal statute was involved (that was one of the criteria Chief Justice Roberts gave during his confirmation hearings), but with Kennedy being the swing vote, I feel pretty confident in calling this one for the pro-life side.

As for the school diversity cases, at least four justices obviously feel pretty confident about how those are going to turn out. These cases also present an opportunity for the Court to reconsider its recent affirmative action decisions (Grutter and Gratz), but I don't see that happening.

[Schmitz in 1972]

I don't think we can predict the outcome of any of the cases right now.

                                                 

You can never be sure with this guy. He's reversed his outlook on non-partial birth abortion, the death penalty, federalism, property rights, and sodomy (who doubts he would have voted with the majority in Bowers had he been on the court?). No way can be confident he's still in the conservative camp on partial-birth abortion and affirmative action, his votes in Stenberg and Grutter notwithstanding.

[A18]

He changed his mind on abortion between Webster v. Reproductive Health Services and Planned Parenthood v. Casey (apparently at the last minute), and he may have changed his mind on some death penalty issues, though it's hard to say, given the "evolving standards of decency" rationale behind those decisions. You're really comparing apples and oranges with regard to the others.

If you listen to Kennedy read his dissenting opinions in the two 2000 abortion cases, he sounds pissed. I find the notion that he would rule differently on an almost identical question after a mere six-to-seven years difficult to subscribe to. Perhaps he would in the name of stare decisis, but that rarely sways a justice to abandon a cause he believes strongly in.

[A18]

Well, here's a bit of a surprise. The liberal justices now appear to be (perhaps) coming around to the view that there are some limits on the Commerce Clause power after all.

JUSTICE GINSBERG: Because your time is running out I did want to ask you about a feature of this legislation that hasn't come up so far, and that is perhaps stimulated by Stenberg. But up until now, all regulation on access to abortion has been state regulation and this measure is saying to the states, like it or not, the Federal Government is going to ban a particular practice and we are going to take away the choice from the states, in an area where up until now it's, it's been open to the states to make those decisions. How should that weigh in this case? And it is something new.

JUSTICE STEVENS: General Clement, That brings up a question I was intending to ask you. I notice the finding says nothing about interstate commerce but the statute says any physician who in or affecting interstate commerce performs the procedures. Does that mean that the procedure is performed in a free clinic, as opposed to a profit organization, it would not be covered?

JUSTICE STEVENS: But how could the Commerce Clause justify application to a free clinic? I don't understand.

Of course, under Raich, I would not see any difficulty applying the ban to a free clinic. After all, any activity that involves the consumption of commodities (in this case, medical supplies) is an 'economic activity.'

Neither party raised the federalism question, nor was it a factor in the lower court's decision. Hence, I would not be surprised to see the Court ignore the matter altogether. But if the ban is upheld against a privacy rights challenge, this could come up in future litigation.

[Sam Spade]

Just a note that the Court, yesterday, in Ayres v. Belamonte, once again overruled the 9th Circuit and found California's death penalty statute constitutional.  The vote was 5-4, with Kennedy providing the "swing vote" and writing the opinion.

[A18]

The Supreme Court today upheld the so-called "Partial-Birth Abortion Ban Act" in an opinion written by Justice Kennedy. No surprises here.

Findlaw.com doesn't have the opinion yet, and so I'm stuck paging through a poorly-designed PDF file. Judging from the syllabus, this looks like a fairly narrow ruling.

The law may face an enumerated powers challenge at some point in the future. As Justice Thomas stated in his concurrence, "I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court."

[A18]

Haha, just got around to reading the opinions in some of the more forgettable cases this term.

Quote of the term comes from Chief Justice Roberts: "Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented 'clearly established' federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc. Encouraged by the majority's determination that the future can change the past, I respectfully dissent."

Abdul-Kabir v. Quarterman; Brewer v. Quarterman.

[bullmoose88]

Haha, just got around to reading the opinions in some of the more forgettable cases this term.

Quote of the term comes from Chief Justice Roberts: "Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented 'clearly established' federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc. Encouraged by the majority's determination that the future can change the past, I respectfully dissent."

Abdul-Kabir v. Quarterman; Brewer v. Quarterman.

At least he has a sense of humor/sarcasm...I still think of the more modern justices, Scalia writes the most entertaining opinions.

The worst to read? Brennan (yes I know he's not current, but relatively close enough)...gigantic, dull, whinny, gas-bag...those opinions are probably 15 pages longer than they need to be.

[Sam Spade]

Brennan = gasbag?

I never would have known without your help, bro. 

[bullmoose88]

Brennan = gasbag?

I never would have known without your help, bro. 

Yes Yes. I know. Perfectly obvious.

I can't stand his opinions. Nothing to do with judicial ideology either...William O Douglas was far more liberal...and his opinions are generally an entertaining read.

[Sam Spade]

Brennan = gasbag?

I never would have known without your help, bro. 

Yes Yes. I know. Perfectly obvious.

I can't stand his opinions. Nothing to do with judicial ideology either...William O Douglas was far more liberal...and his opinions are generally an entertaining read.

Well, the reason why we get to read Brennan so often is because he knew how to shape his writing to gather five votes on tough cases.  Can't say I agree with most of the results, however.

Douglas was nowhere near as talented in this regard.

[A18]

Justice Scalia, in Hein v. Freedom From Religion Foundation, Inc.: "Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason."

It needed to be said, and Scalia said it quite well.

[A18]

In line with my prediction above, the court today struck down the school integration plans at issue in the two cases. The principal opinion was authored by Chief Justice Roberts. Scalia, Thomas, and Alito joined it in full. Kennedy joined it in part. Stevens, Souter, Ginsburg, and Breyer dissented.

http://www.supremecourtus.gov/opinions/06pdf/05-908.pdf
Vote of 5 to 4.