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A faculty panel previewed the upcoming Supreme Court term for a capacity student audience on August 28. Sponsored by the Program in Public Law, panelists Christopher Schroeder, Charles S. Murphy professor of law and public policy and Program director; Robert Mosteller, Harry R. Chadwick, Sr. professor of law; Neil Siegel, assistant professor of law and political science; and Erwin Chemerinsky, Alston & Bird professor of law and political science, agreed that in a number of cases Associate Justice Anthony Kennedy’s vote will be critical, and that the term promises to highlight the impact the appointments of Chief Justice John Roberts and Associate Justice Samuel Alito will have on the Court’s direction.

Partial-term abortion

This is true of two cases scheduled for argument November 8, which question the constitutionality of the so-called Partial Birth Abortion Act, a federal statute prohibiting doctors undertaking a late-term abortion procedure, Chemerinsky said. The United States Courts of Appeals for the Eighth and Ninth Circuits, in considering Gonzales v. Carhart and Gonzales v. Planned Parenthood, respectively, declared the law unconstitutional based on the Supreme Court’s 2000 decision in Stenberg v. Carhart, which struck down a Nebraska law almost identical to the federal statute. “Both said ‘this is a statute that doesn’t have an exception for the life and health of the woman, and the Supreme Court has said there has to be an exception for the life or health of the woman,’” Chemerinsky said.

The cases will offer the first indication of the views on abortion of Chief Justice Roberts and Justice Alito, and their respect for precedent, Chemerinsky said, recalling their stated respect for stare decisis during their confirmation hearings. “There is a decision that is now just six years old that is directly on point.” He predicted that both cases will be decided 5-4, with Justice Kennedy in the majority.

“Justice Kennedy wrote a vehement — even vitriolic — dissent in Stenberg v. Carhart. If he follows that, he will be the fifth vote and the Court will overrule Stenberg,” said Chemerinsky. “On the other hand, based on his decisions from last term, Justice Kennedy seems very self-conscious about his role as the new swing justice. On that basis, maybe he’ll find a way to uphold this law without overruling Stenberg.”

Race-based school assignments

Race is central to two cases which will be argued in tandem. Meredith v. Jefferson County Board of Education and Parents Involved In Community Schools v. Seattle School District, No. 1 both involve the question of whether school districts can use race as a factor in assigning students to public elementary and secondary schools in order to secure the various educational and civic benefits alleged to be associated with racially integrated learning environments. These cases raise unique questions for the Court, said Siegel.

“This is not like old-fashioned discrimination where the intent was to segregate members of a group, and really not at all like affirmative action in education. Rather, this is about assignment within a school district where everyone is guaranteed admission, and the assignment factors are not evaluated — merit, aptitude, nor talent is at stake in the process.” Both school assignment plans seek to ensure that the students in schools affected by the plans reflect the overall racial diversity of their districts; opponents of both allege they violate the Equal Protection clause of the Constitution.

The Sixth Circuit and the Ninth Circuit on en banc review, considering the Jefferson County, Kentucky, and Seattle District No. 1 plans, respectively, found that they satisfied the strict scrutiny test for plans involving racial classifications that was set out in Grutter v. Bollinger and Gratz v. Bollinger, said Siegel, in advancing compelling state interests, focusing on racial understanding, tolerance, and leadership, and being narrowly tailored. Again, “all eyes will be on Justice Kennedy,” he said, noting that opponents of the plans will try to convince him that they amount to affirmative action —which he has not upheld — and defenders will characterize them as being “about Brown’s promise of integration.” The cases have not yet been scheduled for argument.

Punitive damages

The Court will take up punitive damages October 31 in Philip Morris USA v. Williams. An appeal of a $79 million punitive damage award, the issue is whether it violates due process, said Chemerinsky. Two earlier Court decisions — BMW v. Gore on a 5-4 vote and State Farm v. Campbell on a 6-3 vote — held that “grossly excessive” punitive damages did, in fact, violate due process. “What’s notable is that in State Farm, two of the six-justice majority were Justices Rehnquist and O’Connor, “said Chemerinsky. “The dissenters in State Farm v. Campbell were Justices Scalia, Thomas, and Ginsburg. Generally, Chief Justice Alito and Justice Roberts have agreed with Justices Scalia and Thomas on their first year on the Court. If they agree with them here, that large punitive damage awards never violate due process, they could well vote to overrule BMW v. Gore and State Farm v. Campbell.”

Regulation of greenhouse gases

Massachusetts v. Environmental Protection Agency, scheduled for argument on November 1, asks the Court to decide whether the EPA has regulatory authority under the Clean Air Act to regulate carbon dioxide emissions from new motor vehicles. “If you look at the language of the statute, there can’t be any question of what the answer is — yes,” said Schroeder, pointing to statutory language that permits the EPA to regulate contents of auto emissions that may reasonably be anticipated to “adversely affect the public health or welfare,” with welfare defined to include climate. “So the argument goes that carbon dioxide is the primary greenhouse gas, it causes global warming, there is now nearly universal scientific consensus that global warming is affecting global climate,” said Schroeder. But in Brown and Williamson v. Food and Drug Administration, the Court rejected similarly clear language in the FDA’s authorizing statute that appeared to give it regulatory authority over tobacco, citing a number of statutes that Congress had enacted to regulate such things as tobacco advertising, which indicated a belief that it was a product that could be marketed without FDA regulation.

“The same kind of argument is being made in the ‘global warming’ case, but on the basis of a far lighter pattern of inconsistent administrative and executive branch activities,” said Schroeder. The only previous official position of the EPA prior to this litigation, he added, came from the general counsel of the Clinton administration in response to this direct question, who stated that the EPA did, in fact, have jurisdiction over carbon dioxide regulation.

The central issue in Whorton v. Bockting, also scheduled for argument November 1, is the retroactivity of the Court’s 2004 decision in Crawford v. Washington, which held that testimony given outside the courtroom and admitted as hearsay is admissible at trial only if the witness is unavailable and the defendant had an opportunity to cross-examine him or her. The Court of Appeals for the Ninth Circuit departed from other Circuits in ruling in favor of retroactivity in certain circumstances, including those raised by Bockting, a prisoner serving a life sentence for sexual assault on a minor, whose statements to a detective were admitted at his trial in lieu of testimony. While Bockting may well be “that rare blockbuster” that fits the exceptions allowing Crawford’s retroactivity under “collateral attack” after all other grounds for appeal have been exhausted, it would be highly impractical to grant broad retroactivity, said Mosteller. “If two million people are in prison, about a million would have been convicted under the old [pre-Crawford] regime.”

The panel discussion is available as a live webcast at http://www.law.duke.edu/webcast/.