Upcoming U.S. Supreme Court cases

A recent Cato Institute conference* discussed a number of interesting cases listed for hearing before the U.S. Supreme Court in its 2006/07 term, which begins on October 2nd. This piece does likewise. (I rely significantly on the talks given by Erik Jaffe and Randy Barnett - see link below.)

Two cases challenging the 2003 federal partial birth abortion (PBA) statute, Gonzalez v Planned Parenthood and Gonzalez v Carhart, will be heard together on November 8th. The petitioners claim that the absence in the legislation of an exception allowing the use of the procedure where there is a danger to the mother’s health renders the legislation unconstitutional. Of course, it is perfectly arguable that Congress had no jurisdiction to pass the Act in the first place. This is because the Act’s declared basis is in the Commerce Clause, which is patently absurd, since the Act does not regulate commerce, and, even if PBA’s were held to be “commerce”, the Act does not regulate commerce between the states, which is all Congress is constitutionally entitled to do. The Commerce Clause should end the matter, but it will not.

Of course, the U.S. Constitution has long been held, under the Ninth Amendment (the unenumerated rights clause) to protect a right to privacy, which extends to cover freedom of personal choice as to abortion. The case of Roe v Wade (1973) was confirmed in 1992 in Planned Parenthood v Casey. Notwithstanding the central freedom to choose protected by Roe and later decisions, various states have imposed certain restrictions on legal abortion. Nebraska passed a law banning PBA, with no maternal health exception. In 2000, the U.S. Supreme Court held that this rendered Nebraska’s statute unconstitutional, in Stenberg v Carhart.

In Gonzalez v Carhart, the Court of Appeals for the Eight Circuit upheld both the ruling that the statute was unconstitutional, and a permanent injunction against enforcement of the Act: , as did the Ninth Circuit in Planned Parenthood. In the latter case, the district court had upheld the challenge on three grounds:
1. The Act placed an “undue burden” on the woman’s right to choose to terminate her pregnancy before viability. (This test derives from Casey.)
2. The Act was unconstitutionally vague, because the term “partial birth abortion” was not a recognised medical term. Accordingly, doctors had insufficient guidance as to when they would be subject to the statutory penalties, which include criminal sanctions.
3. Even on the most deferential standard of review, Congress had acted unconstitutionally in failing to grant a health exception, as mandated by Casey.
The Ninth Circuit agreed with all three grounds.

So what will the Supreme Court do now? If it upholds Stenberg, it will be striking down a federal statute on the basis of an (unenumerated) constitutional right to health. Congress has considered the matter and decided that a health exception is not required in relation to the PBA procedure. The Court, by its decisions to date, has put itself in something of a bind. In Casey, the Court invoked the doctrine of stare decisis (letting precedents stand) in the interests of certainty in the legal system. But in that instance two decades had passed since Roe, and it was at least plausible to say that citizens had placed a great deal of reliance on Roe being the law. That is not to say that Roe was itself correct, or that a strong or inflexible doctrine of stare decisis is necessarily appropriate in constitutional matters, but those are different questions.

It will be very interesting to see, for example, the decision of Justice Kennedy. This is because he was with the majority in Casey in affirming Roe, but wrote a strong dissenting judgment in Stenberg. But the decision in Casey was justified on the basis of stare decisis. It is possible that he will maintain his position that Stenberg was wrongly decided, and argue that that was a much more recent decision (of much less stature indeed) than Roe. The final interesting point to note is that Justice O’Connor, part of the majority in Stenberg, has been replaced by Samuel Alito, and there is also now a new chief justice, John Roberts. Both come to the court as avowed conservatives. Their views, if any, on the appropriate role of stare decisis will be interesting. It is perhaps in that latter respect – the approach of the court’s two new members – that the greatest importance of the upcoming cases lies, given the influence both will have in future as lifetime appointees.

Stenberg points to the Supreme Court not overturning the decisions of the Eighth and Ninth Circuit. If, however, Chief Justice Roberts and Justice Alito find themselves unable to agree with that decision, the 5-4 majority by which it was decided would vanish. The point pressed by Justices Thomas and Kennedy in Stenberg – that, even assuming that Casey should be adhered to, the decision in Stenberg was inconsistent with it – might appeal to the new justices. Or, it is possible that they could agree with Justice Scalia’s plea in Stenberg that Casey should be overruled. (Before Casey got to the Supreme Court, Judge Alito dissented from the Third Circuit's ruling: 947 F.2d 682 (3d Cir. 1991), and his reasoning was approved on appeal by the then Chief Justice William Rehnquist, who of course was in the minority in Casey.) There is, however, on past form (irrespective of what the new justices think) no majority on the Court in favour of the most sweeping move of all: overruling the bedrock decision in Roe, returning the matter to the States, and decommissioning the Supreme Court’s role as arbiter of what Justice O’Connor in Stenberg called “one of the most contentious and controversial issues in contemporary American society”.

Justice Ginsburg in Stenberg suggested, concurring with Chief Judge Posner of the Seventh Circuit that the aim of Nebraska’s legislation was “to chip away at the private choice shielded by Roe v Wade, even as modified by Casey”. Perhaps the 2003 statute was, perhaps it wasn't; I don’t know. We in Ireland are well aware of the contention attaching to the issue of abortion. We should probably be thankful that our courts never got themselves into the mess of reading a right to abortion into our Constitution. As Justice Scalia put in Stenberg:

“Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since”

The entire matter should be for elected legislators to decide, or for the people in a referendum. Our law is, however, somewhere in between, but that is another day’s debate.

There other interesting cases coming up, but since I know very little about the relevant law, I’ll just mention them, so anyone interested might be aware of them. The Court has agreed to hear two affirmative action cases, Parents Involved in Community Schools v. Seattle School District #1, et al. and Meredith v Jefferson County Board of Education, which concern the validity of explicit use of race as a criterion in schools' selection procedures. The argument over affirmative action is a contentious one, but the legal issue comes down to whether the increased diversity within schools provides sufficiently compelling justification to outweigh the prima facie breach of the Equal Protection Clause. The Meredith case involves an argument that the Court should overrule three of its own precedents, Grutter v. Bollinger, 539 U.S. 306 (2003), Regents of University of California v. Bakke, 438 U.S. 268 (1978) and Gratz v. Bollinger, 539 U.S. 244 (2003). In the Seattle School District #1 case, the Ninth Circuit (by 7 votes to 4) upheld the selection plan. Judge Carlos Bea, with the concurrence of three of his colleagues, wrote a bracing dissent, which is worth reading on its own. (see pdf. pp.59-106), which quite powerfully marshals the arguments in favour of holdings such laws contrary to the Equal Protection Clause: see in particular the quote from Mosk J. of the California Supreme Court at p.105 of the pdf.

The issue of punitive damages will be debated in Philip Morris USA v Williams, which is listed for October 31st. The Court is to review a $79.5 million punitive damages award by a jury in a case brought by a widow of a smoker. The punitive damages exceed the compensatory damages awarded by a factor of 97. The Chamber of Commerce of the United States of America has described the case as an “ideal vehicle for bringing some measure of clarity to the chaos that continues to roil punitive damages jurisprudence in federal and state courts throughout the nation.” The various courts’ disparate opinions have followed (in time and in law) the Supreme Court decisions in of North America, Inc. v. Gore 517 U.S. 559 (1996) and, more recently, State Farm Mutual Automobile Insurance Co. v. Campbell 538 U.S. 408 (2003). The background against which the case comes before America’s highest court is discussed here.

Of the 31 cases so far accepted by the Court for the 2006/07 term, a few others with important subject matters may be referenced. Environmental Defense v. Duke Energy Corp. and Massachusetts v. Environmental Protection Agency concern the Clean Air Act, but will probably be more interesting for their discussion of the question of standing. (The former will be heard on November 1st, the latter is as yet unscheduled.)

Two other cases on the docket, Whorton (Nevada Dir. of Corrections) v. Bockting and Burton v. Waddington (November 1st and 7th respectively) raise the question of retroactive application of constitutional rules of criminal procedure. X is convicted and imprisoned today, but next week B persuades the same court or (perhaps more likely) an appellate court to apply, or announce, a constitutional rule of criminal procedure that would, or might, have applied in X’s case. After the decision in B’s case, may X bring a collateral application for review of conviction/sentence and have the benefit of the rule? Whorton involves an interesting question relating to the admissibility of testimonial hearsay evidence under the 6th Amendment, and centres on the Ninth Circuit’s interpretation of the Supreme Court’s 2004 decision in Crawford v Washington.


*The fifth annual Constitution Day Conference on September 14th , recordings of which are available online (see, for 2006/07 cases, panel 4). Also under discussion were 2005/06 cases on topics such as assisted suicide and Guantanamo Bay detainees. For another discussion of upcoming cases, see this Law.com article.