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2006-07 Term Preview

We here at the Legal Information Institute's Supreme Court Bulletin are excited about the upcoming term, and we wanted to share with our more than 15,000 subscribers some brief thoughts about the Court's docket as it now stands. Because the Court has yet to slate the entire session (or even enough cases to get through the end of the calendar year!), theorizing about any sort of pattern or theme in the cases the Court has chosen to hear or the larger implications of the coming term would be premature. Our first regular Bulletins will start appearing next week, and you can expect a Bulletin on each and every case about two weeks before the Court hears arguments. In the meantime, below are some observations about a few of the high-profile cases that are sure to capture the public's attention as they go before the Court in the coming months.

Controversial Issues on the Docket

Three controversial issues jump out from the list of cases the Court has already agreed to hear. First, in Commonwealth of Massachusetts v. Environmental Protection Agency the Court will determine whether Congress has granted the Environmental Protection Agency (“EPA”) the power to regulate greenhouse gas emissions from automobiles in order to reduce the effects of global warming. Second, both Meredith v. Jefferson County and Parents Involved in Community Schools v. Seattle School District No. 1 ask whether school districts can use a previous Supreme Court decision to grant or deny admission to a particular public high school solely on the basis of race. Lastly, the issue of whether the Partial-Birth Abortion Ban Act of 2003 should be ruled unconstitutional is front-and-center in both Gonzales v. Carhart and Gonzales v. Planned Parenthood.

In Massachusetts v. Environmental Protection Agency, several states are suing the EPA after it refused their request to regulate automobile emissions that contribute to four greenhouse gases: carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons. The EPA refused to control automobile emissions for greenhouse gases because, it says, it lacks the authority to do so under the Clean Air Act. The petitioning states disagree and look to the plain language of the Clean Air Act to argue that the statute authorizes the EPA to regulate such emissions. Although complex issues of standing to bring this suit and the degree of deference the Court must give the EPA might allow the Court to escape real profundity here, there may be no way for the Court to avoid a ruling with at least some lasting ramifications on how the government addresses global warming in the future.

Another two cases that are sure to raise eyebrows ask the Court to rule that racial diversity is a compelling state interest validating the use of race as the only factor to determine whether to admit a student to a public high school. Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County, to be argued in tandem, take issue with the practice employed by certain public school districts of using race as the deciding factor when determining whether to admit students to the public high school of their choice. Seattle School District No. 1 argues, and the lower courts agreed, that because Seattle's population is 40% white and 60% non-white, the public schools should reflect that same balance. As a result, 89 non-white students and 216 white students were denied admission to the school of their choice. The parents of the students who were denied admission argue that such a quota-like system is unconstitutional because it violates the Fourteenth Amendment and Title VII of the Civil Rights Act. Ultimately, the Court must decide whether the reasoning behind its previous 2003 ruling allowing narrowly-tailored race-based admissions criteria for publicly funded law schools should also apply to public high schools. It may instead analogize to its companion ruling striking down a less precise use of race in admissions criteria to a publicly funded university.

Finally, the Court has granted cert in two cases that challenge the constitutionality of the Partial-Birth Abortion Ban Act of 2003 for its failure to include a health exception required by earlier Supreme Court cases, most recently Stenberg v. Carhart. Before the Act could be implemented, federal judges in California, New York, and Nebraska ruled it to be unconstitutional because it did not include such an exception. The Court will hear both Gonzales v. Carhart and Gonzales v. Planned Parenthood in tandem on November 8, 2006. To be argued just a day after Congressional elections, these two cases could result in the Roberts Court's most contentious ruling yet, depending on how narrowly or broadly the Court chooses to rule. Perhaps it was cases like this that led to so much discussion during Chief Justice Roberts's and Justice Alito's confirmation hearings about the theory of stare decisis, the deference given to similar cases already decided by the same court. These cases certainly afford the Roberts Court an opportunity either to back the Court's existing reproductive rights precedents or to overrule Stenberg and pave the way for further incremental challenges to the Court's previous abortion jurisprudence.

In our review of the 2005 – 2006 term, we noted how the Roberts Court maintained a high degree of consensus by ruling on the most narrow grounds available to it, often avoiding a definitive statement about the larger issues animating public interest. In fact, the Court has demonstrated a penchant for that very practice throughout much of its history. Whether this Court ultimately reaches or dodges the controversial issues these cases present, the staff of the LII Supreme Court Bulletin will be watching with keen interest. We hope you'll join us!

Craig Newton, Editor-in-Chief

Elizabeth Hanks, Executive Editor

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