High Court's Next Term Full of Big Cases

ABC News
High Court's Next Term Full of Big Cases
Supreme Court's Next Term Loaded With Contentious Issues As Justice O'Connor Leaves the Bench
By GINA HOLLAND
The Associated Press

Jul. 3, 2005 - Abortion, assisted suicide, gay rights, the death penalty. Some of the toughest issues in the land confront the Supreme Court in its new term in the fall.

A new lineup of justices assuming the successor to influential Justice Sandra Day O'Connor is on the bench makes the outcome of these cases more unpredictable than usual.

The high court has not had a new member since 1994, a modern-era record. That stability has made it easier to gauge what issues the court will take on and how they will be decided.

On major ones, the court frequently splits 5-4. O'Connor, a moderate put on the court by President Reagan, has been a key vote in death penalty, religion and abortion cases. Her view often became the final word.

Her retirement, announced Friday, shook up the world of Supreme Court lawyers who prepared cases with O'Connor in mind.

"She was widely viewed as the key by experienced and successful litigators. They'll have to figure some other way to win their cases," said Nelson Lund, a George Mason University law professor and former clerk to O'Connor.

O'Connor said that she will remain on the court until her successor is confirmed. Depending on President Bush's choice, there could be a lengthy fight that stretches into the fall.

If O'Connor is not able to continue serving, many major cases could leave the court split 4-4.

Also in doubt is the future of Chief Justice William H. Rehnquist, who has cancer and could step down this summer, too. The last time there were two vacancies was 1971.

Justices already have a full lineup of cases for the nine-month term that begins the first Monday in October. The court has agreed to hear about 40 appeals, including four death penalty cases and two abortion-related cases. About 40 more appeals will be added later.

Whoever the president names to the court will immediately face cases involving the Bush administration.


In one, the court will decide if law schools may restrict military recruiters as a way of protesting the Pentagon's "don't ask, don't tell" policy excluding openly gay people from military service.

Schools argue that their nondiscrimination policies apply to all recruiters that base hiring on race, gender or sexual orientation.

Justices will take up the administration's challenge to Oregon's law allowing physician-assisted suicide. In addition, there is a fight that tests freedom of religion, over a church's use of hallucinogenic tea in its religious services.

The abortion cases involve a parental notification law from New Hampshire and a long-running fight over the liability of people who protest outside clinics.

O'Connor's successor probably will be quizzed during Senate confirmation hearings about those subjects.

"I'd expect any of the nominees to duck answering," said Paul Schiff Berman, a law professor at the University of Connecticut.

Berman said that a major question is whether the new justice will be a pragmatist like O'Connor.

The 75-year-old former Arizona state senator and mother of three sons approached cases with a practical view.

"She always chose the least extreme solution, the compromise solution," Berman said. "She's kept the court very close to the American popular consensus on most issues."

Unlike the court's other conservatives, she believes that affirmative action has a place in government institutions, although limited. She believes that abortion should be legal. While she supports the death penalty, she has talked openly about concerns that it is being fairly imposed.

Among the death penalty cases in the next term is a potentially significant issue of allowing inmates to get a new chance to prove their innocence with DNA evidence.

"In many cases, Justice O'Connor's votes were to protect the rights of defendants," said Richard Dieter, executive director of the anti-capital punishment Death Penalty Information Center.

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