WASHINGTON, Sept. 30 — The Supreme Court has so many polarizing cases on the docket for its new term that the deep ideological divisions that characterized the last term are all but certain to remain on display after the justices reconvene on Monday.
The conservative majority under Chief Justice John G. Roberts Jr. drove the court to the right in a series of high-profile rulings during the term that ended in June. That performance, as well as a series of books and articles by and about justices, has placed the court in an unusually bright spotlight as the new term opens.
The conservative bloc will not necessarily prevail in every important case. For example, the Bush administration is clearly on the defensive as the court prepares to hear a third-round challenge to policies governing those held as enemy combatants at Guantánamo Bay, Cuba.
But the conservative justices clearly have the upper hand in the all-important task of shaping the court’s docket, a process that in effect shapes the country’s immediate legal agenda. They demonstrated their power last week in accepting 19 new cases, an unusually large number, including an employer’s appeal in a racial discrimination case that could provide a vehicle for limiting remedies available under one of the country’s oldest civil rights laws.
But the day after the term ended, they reversed course and agreed to hear the cases, an action without modern precedent. Because the reconsideration required the votes of five justices, instead of the four ordinarily needed to grant a case, the development strongly suggested that a majority of the court retains concerns about the current regime for determining and challenging the detainees’ designation as enemy combatants. The Bush administration lost two earlier rounds at the court, in 2004 and 2006.
Among the new cases the justices granted last week was a challenge to a state law requiring voters to provide photo identification in order to cast a ballot, an issue that has divided legislators and judges along party lines throughout the country. Republicans generally stress the importance of preventing voter fraud, while Democrats view these increasingly popular measures as creating unwarranted barriers to voter access. Although the justices granted the case at the request of the Indiana Democratic Party and the American Civil Liberties Union, the action could well prove to be an example of “watch out what you wish for” if the result is to uphold the statute at issue and to encourage other states to follow Indiana’s lead.
The justices also took up a highly visible death penalty case, a challenge to the particular lethal injection method that is used in most states. While the validity of capital punishment, or even of lethal injection, is not at stake, the case will require the justices to take a position on the current meaning of the Eighth Amendment prohibition on cruel and unusual punishment. It is far from clear whether a majority of the justices will read the Constitution as mandating one chemical formulation versus another.
The discrimination case the justices granted on Tuesday, which has attracted almost no notice, could nonetheless produce an important shift in the court’s approach to interpreting statutes. The question is whether a law that bars racial discrimination in business dealings, including employment, also prohibits retaliation against those who complain about discrimination.
Ordinarily, the court grants cases only to resolve conflicting interpretations in the lower courts. But in this instance, every federal appeals court to consider the issue has agreed that the statute does apply to retaliation. For the court to grant a case in the absence of a lower-court conflict — as it did in the case decided in June that invalidated voluntary integration plans in two public school systems — is often an indication that the case has been added to the docket as a vehicle for advancing a particular agenda.
The federal law at issue in the new case was originally part of the Reconstruction-era Civil Rights Act of 1866. Known now as Section 1981, it does not mention “retaliation.” Neither do most other anti-discrimination laws. In the past, that has been no barrier to the court in finding that protection against retaliation is inherently part of protection against discrimination.
But support on the court for an approach that goes beyond the margins of the constitutional text has been shrinking. Two years ago, the court ruled by a vote of 5 to 4 that Title IX, a law that bars sex discrimination in schools, also covers retaliation. Justice Sandra Day O’Connor wrote the majority opinion. It is likely that her successor, Justice Samuel A. Alito Jr., would have been among the dissenters.
Given that the new case, CBOCS West, Inc. v. Humphries, No. 06-1431, does not meet the court’s most important criterion for review, it is likely that a new majority granted it in order to cut off the retaliation claim and perhaps also to issue a broader ruling against finding rights that are not spelled out in statutes.
Here are details of other important cases for the new term.
Detainees
A year ago, in response to the court’s most recent ruling in favor of a Guantánamo detainee, the Republican-controlled Congress passed the Military Commissions Act, providing that “no court, justice, or judge shall have jurisdiction” to consider a detainee’s petition for a writ of habeas corpus. Senator Arlen Specter, the Pennsylvania Republican who was then chairman of the Judiciary Committee, voted for the measure, but he has filed a brief telling the justices he believes it is unconstitutional.
The Constitution authorizes Congress to suspend the “privilege” of habeas corpus only at times of “rebellion or invasion.” Under the Supreme Court’s precedents, a suspension at other times may nonetheless be permissible as long as adequate alternate procedures exist for challenging a conviction or sentence. So the question in these cases, Boumediene v. Bush, No. 06-1195, and Al Odah v. United States, No. 06-1196, is whether the justices will deem the limited procedures available to the detainees to be adequate.
Voting Rights
Challengers to Indiana’s two-year-old voter identification law, which requires current government-issued photo ID, call it the “most onerous” such law in the country. Voters lacking the proper identification have 10 days to obtain it in order for their provisional ballots to be counted.
A federal appeals court upheld the law, finding that it would prevent fraud while not keeping many people from the polls. The plaintiffs maintain that the poor and elderly would face a disproportionate burden. The underlying question is how the justices will evaluate the competing interests of preventing fraud and protecting access. The cases are Crawford v. Marion County Election Board, No. 07-21, and Indiana Democratic Party v. Rokita, No. 07-25.
Criminal Law
The lethal injection case, Baze v. Rees, No. 07-5439, challenges the use of the most common three-drug lethal injection “cocktail,” which is conceded to place some inmates at risk of severe pain. The Kentucky Supreme Court concluded that the risk was not “substantial” enough to make the particular combination unconstitutional.
The question for the justices is what standard courts should use in evaluating the evidence from which to draw a conclusion on constitutionality, especially in light of evidence that pain can be avoided through a different combination of drugs and attention to a reliable level of anesthesia.
The court will also hear two more cases that address the question of judicial discretion in federal criminal sentencing. The question in Gall v. United States, No. 06-7949, is the justification a judge must provide in issuing a sentence that differs substantially from the one called for by the federal sentencing guidelines. Kimbrough v. United States, No. 06-6330, addresses judicial discretion to mitigate the harsh sentences required for offenses involving crack cocaine.
Federalism
The Texas courts have refused to accept a directive from President Bush to bypass procedural obstacles and grant a new hearing to a Mexican death-row inmate, following a 2004 World Court decision that the inmate’s rights under an international treaty were violated when he was not given the chance to meet with Mexican officials. The case, Medellín v. Texas, No. 06-984, presents unusual issues of state-federal relations.
