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First Monday
A Supreme Court term to remember begins.


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Jonathan H. Adler

The Supreme Court’s 2005-06 term begins today, the first Monday in October. With a new chief justice, this term will be as notable for what it says about the future direction of the Court than for the specific decisions in any particular cases. This doesn’t mean there are no important and high-profile cases. To the contrary, the Court will address federalism, abortion, and Anna-Nicole Smith’s estate. There’s a constitutional challenge to the Solomon Amendment and a fight over application of the Religious Freedom Restoration Act. The Court will clarify the scope of the Racketeering-Influenced and Corrupt Organizations Act (RICO) and address important questions in antitrust and criminal procedure. Nonetheless, the most striking thing about the new term is the first change in the Court’s composition in over a decade.

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Until Justice Sandra Day O’Connor announced her retirement in July, there had been no turnover on the Court for eleven years. This was the longest period nine justices have sat together as a Court in the nation’s history. Indeed, not since the 1820s, when the Court had only seven justices, had the Court gone more than six years without any turnover. Now we have a new chief justice, and a pending replacement for Justice O’Connor.

A change in the Supreme Court’s lineup, even one that does not appear to alter the ideological make-up of the Court, has the potential to disrupt this equilibrium, change institutional norms, and alter the course of existing doctrines. As Columbia University law professor Thomas Merrill has observed, after so many years together, the justices learned predict their colleagues’ votes, dispositions, and inclinations–and therefore the outcomes of individual cases–with tremendous confidence. No longer. Now it will be more difficult to call the outcomes in once-predictable cases. Even routine applications or clarifications of existing precedent hold out the potential to take Court decisions in a new direction. Even the shuffling of seniority can have important doctrinal effects, insofar as it places the responsibility to assign cases in different hands.

Of course, many of the individual cases are quite important. On Wednesday, the Court will hear Gonzales v. Oregon, a challenge to the federal government’s effort to effectively preempt Oregon’s Death with Dignity Act. Under current Commerce Clause doctrine, there is little question that Congress could prohibit doctors from prescribing drugs to help their patients kill themselves, yet it has never done so in explicit terms. Therefore, the question in Oregon is whether the attorney general can interpret the federal Controlled Substances Act (CSA) to bar the use of federally regulated drugs in doctor-assisted suicide. The Supreme Court has held repeatedly that federal statutes should not be interpreted to displace state authority unless congressional authorization for such action is “unmistakably clear.” If the Court sticks to that view, Oregon should prevail, but it will be a close case.

Although the Oregon case turns on the questions of statutory interpretation, it is an important federalism case. Given the broad assertion of federal regulatory authority under the CSA and other comprehensive regulatory statutes, the extent to which federal agencies may exercise their authority to preclude state choices is significant. If courts are to give Congress a wide berth in determining the proper exercise of federal power–as the Court’s decision last term upholding federal prohibition of medical marijuana suggests–clear statement rules are particularly important. If the primary limitation on federal power is to come through the political process, then it is that much more important that Congress be required to go on record when federal law will contravene the policy choices citizens make in their respective states. (For more on the case, see my recent debate with Wesley Smith here).

There are other federalism on the Court’s docket. In two cases the Court will revisit the limits of state sovereign immunity. These cases will give an early indication whether the Rehnquist Court’s New Federalism will survive in the Roberts Court. There’s also a federalism-based challenge to the use of tax credits to encourage in-state economic development. In Cuno v. Daimler Chrsyler, the U.S. Court of Appeals for the Sixth Circuit held that Ohio’s franchise tax credit for additional manufacturing investment made by in-state firms was unconstitutional. The Court rejected Ohio’s argument that the policy benefited in-state investment instead of penalizing out-of-state investment. A Supreme Court decision in Cuno could have a substantial effect states’ use of tax credits and other investment incentives to attract, or maintain, business investment within the state.

Federalism issues of a slightly different sort are at issue in Ayotte v. Planned Parenthood of Northern New England–the Roberts Court’s first foray into the abortion debate. The U.S. Court of Appeals for the First Circuit struck down New Hampshire’s parental notification law on the grounds that it lacked an explicit health exception and its life exception was drawn too narrowly. Despite the existence of a judicial bypass provision, the First Circuit held that the law could impose an “undue burden” on a minor woman’s right to obtain an abortion. If the Supreme Court upholds the law–as many expect–it could free up state governments to impose additional abortion regulations. The case could also spur the Court to reconsider the “undue burden” test announced in the infamous Casey opinion, and even signal Chief Justice Roberts’ views on Roe v. Wade itself.

Perhaps the most eagerly anticipated case for legal academics is Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), a constitutional challenge to the Solomon Amendment, a federal law requiring universities that receive federal funds to grant the military equal access to campus recruiting opportunities. The case arose out of the controversy over the U.S. military’s “don’t ask, don’t tell” policy, which excludes open homosexuals from military service. Many law schools barred military recruiters from campus to protest the “don’t ask, don’t tell” policy. Congress responded with the “Solomon Amendment.” Facing the loss of federal money for their universities, a group of schools and law professors filed suit alleging the law violates their right of expressive association. In a sense, their argument is that if the Boy Scouts can exclude gay scoutmasters, law schools should be able to exclude military recruiters. The federal government responds that law schools are free to exclude military recruiters–they just forfeit federal funds.

The law professors’ argument was accepted by a divided panel of the U.S. Court of Appeals for the Third Circuit, but there are many reasons to doubt this holding will stand. Among other things, the Third Circuit adopted a significantly more expansive view of the right of association than has been recognized by any court. Even were the Supreme Court sympathetic to this claim, the Solomon Amendment is not more intrusive than other funding conditions previously upheld. Add the fact that the Supreme Court does not have a long record of challenging military policy determinations and it seems the military is destined to prevail.

If all the above were not enough, there is far more to come. Before embarking on their summer recess, the justices had only filled half their docket. A few additional cert grants were announced last week, including two First Amendment challenges to state and federal campaign-finance laws, and additional cases will be added in coming weeks. An appellate court’s decision invalidating the federal ban on partial-birth abortion may be up for review, as could the Justice Department’s effort to use the federal anti-racketeering law against tobacco companies. And don’t forget about the war on terror. The Court will be asked to revisit questions about federal authority to try Guantanamo detainees, bin Laden’s former bodyguard Salim Ahmed Hamdan, and alleged enemy combatant Jose Padilla before military commissions.

With a new chief, an eventual replacement for Justice O’Connor, and a growing roster of high-profile cases, this will be a Court term to remember. While I don’t expect many groundbreaking opinions, we will get our first real clues about the course the Court will take in the years to come. Welcome to the Roberts Court.

Contributing Editor Jonathan H. Adler is a visiting associate professor at the George Mason University School of Law. His longer preview of the upcoming term was recently published in the 2004-05 Cato Supreme Court Review.



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