Washington – Americans won’t have long to wait to see how Chief Justice John Roberts changes the dynamics of the U.S. Supreme Court.
On Wednesday morning – two days after its 2005 term begins – the Roberts court will hear oral arguments in its first marquee case of the 2005 term: a dispute between Oregon and the Bush administration over the state’s assisted-suicide law.
Oregon voters passed the Death With Dignity Act in a 1994 referendum, but former Attorney General John Ashcroft in 2001 asserted that physician-assisted suicide serves no “legitimate medical purpose.” He threatened doctors who dispense lethal doses of controlled substances with prosecution.
Lawyers and judges around the country will be watching closely to see whether Roberts will side with individual liberty, popular will and states’ rights in the Oregon case or accede to federal power. As the new chief justice interrogates the attorneys Wednesday, each of his questions will be parsed and pondered.
“Cases are going to be all the more important this year because we have a new court,” said Kathy Rodgers, the president of Legal Momentum, a women’s legal rights group. “We are going to be watching to see how far and how fast he takes the court in the direction he wants to go.”
Because Roberts was so discreet in his pre-confirmation testimony before the Senate Judiciary Committee, no one really knows how he will act as chief justice.
“While it is never possible to predict with complete confidence how a Supreme Court justice will rule once he’s been granted the great power and influence of office, we believe that John Roberts will become exactly the kind of chief justice that America needs,” said James Dobson, chairman of the Colorado Springs conservative group Focus on the Family Action.
But Robert Bork, whose outspoken conservative beliefs cost him a seat on the high court in 1987, isn’t so sure. After listening to Roberts’ testimony, and from knowing him casually over the years, Bork predicts that the new chief justice may “move the court slightly to the left.”
Behind the scenes, in conservative circles, “there has been a lot of disquiet … about what he might do,” Bork said.
“My guess would be he will not participate in creating new constitutional rights” in areas such as gay marriage, Bork said. But, he added, “I don’t think he’s going to go back and overturn any of the constitutional outrages of the past,” like the Roe vs. Wade abortion-rights case.
The makeup of the Supreme Court has not changed since Justice Stephen Breyer was appointed by President Bill Clinton in 1994. “We have gone from a decade of stability … into an age of uncertainty,” said Steven Shapiro, legal director of the American Civil Liberties Union.
The first term of the Roberts court will become the focus of even more attention when President Bush names someone to replace retiring Justice Sandra Day O’Connor, who shifted between the conservative and liberal blocs while on the court.
“On a closely divided court, any new justice can have a significant impact. This term, there will be two,” Shapiro said.
O’Connor’s replacement “will steer the court’s direction long after the president is gone,” said Sen. Patrick Leahy, D-Vt., ranking Democrat on the Senate Judiciary Committee.
The court’s last major ruling on assisted suicide, in 1997, rejected the notion of a constitutional right, yet lauded states’ abilities to serve as laboratories for social change.
But in its 2004 term, the court bowed to federal authority in a comparable case, overruling a California law allowing doctors to prescribe marijuana to seriously ill patients.
If Roberts assembles a majority to strike down the Oregon Death with Dignity Act, he will reassure social conservatives and right-to-life advocates, Shapiro said, but “plunge the court into the culture wars.”
Looming right behind Gonzales vs. Oregon is a potentially far-reaching abortion case, Ayotte vs. Planned Parenthood of Northern New England, with oral arguments scheduled for Nov. 30. It will be the first abortion case to go before the court in five years.
The New Hampshire statute at issue in Ayotte requires minors to get parental consent before obtaining abortions. Because the law does not contain an exception for when a young woman’s health is endangered, federal district and appeals courts ruled that it violated previous Supreme Court rulings.
It was a surprise, then, when the Supreme Court took the case. The state of New Hampshire, and the Bush administration, argued that standards used to uphold abortion rights in previous rulings are too generous to women and should be curtailed.
Roberts and his colleagues may also choose to revisit the issue of the late-term procedure that opponents call partial-birth abortion. In 2000, with O’Connor casting the crucial vote in a 5-4 decision, the court struck down a state law banning such procedures. The Bush administration has asked the court to reconsider its findings in a new case over the constitutionality of a federal ban.
Abortion-rights advocates fear the court’s conservative justices, wary of the uproar they would cause by overturning Roe vs. Wade, have embarked on a stealthy campaign to erode abortion rights.
“The strategy is to eviscerate Roe vs. Wade so it is nothing but a hollow shell, yet nobody’s overruled it,” Rodgers contends.
George Washington University law professor Jeffrey Rosen is more sanguine. “On abortion, the court has precisely expressed the preference of most Americans for access to early- term abortions, and restrictions on late-term abortions,” he said.
A gay-rights issue will come before the court this term, though tangentially as a First Amendment case: Rumsfeld vs. Forum for Academic and Institutional Rights, to be argued on Dec. 6.
At issue is a law school’s right to bar recruiters from firms or institutions that discriminate, such as the U.S. military. Congress has passed measures ordering law schools to allow military recruiters on campus, despite the Pentagon’s policy banning gays in uniform.
The Supreme Court ruled in 2000 that private groups such as the Boy Scouts have a First Amendment right to disassociate themselves from homosexuals. Employing that reasoning, a federal appeals court ruled last year that law schools have a similar right to disassociate themselves from institutions that discriminate.
The court will also consider several notable campaign finance, voting and redistricting matters as well as cases dealing with sexual harassment, rights of the disabled and death penalty issues, and it may take one or more cases challenging anti-terrorism measures.
“The new chief justice will have his work cut out,” said Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee.
John Aloysius Farrell, Washington bureau chief for The Denver Post, can be contacted at 202-662-8990 or jfarrell@denverpost.com.
