The Supremes

By Erwin Chemerinsky
     
      A Dramatic Term to Come
      The U.S. Supreme Court's new term, which begins October 2, will likely signal how the Roberts Court will treat some of the most controversial issues in constitutional law and American society. On the docket, now half full, are potential landmark cases on abortion rights, using race in assigning students to schools, punitive damages, and criminal procedure.
     
      Abortion Rights
      The Court will hear two cases concerning the constitutionality of a federal statute prohibiting so-called partial birth abortions. (Gonzales v. Carhart, 413 F.3d 791 (8th Cir. 2005), cert. granted, 126 S. Ct. 1314 (2006) and Gonzales v. Planned Parenthood, 435 F.3d 1163 (9th Cir. 2006), cert. granted, 126 S. Ct. 2901 (2006).)
      Several years ago, in Stenberg v. Carhart (530 U.S. 914 (2000)), the Court struck down a Nebraska law prohibiting removal of a living fetus or a substantial part of one with the intent of ending the fetus's life. In invalidating the law, the Court stressed that there was no exception allowing the procedure when necessary to protect the health of the woman and that the law was written so broadly that it prohibited many types of abortion procedures.
      Notwithstanding that decision, Congress adopted the Partial Birth Abortion Ban of 2003, which is very similar to the Nebraska statute in that it contains no health exception and is broadly written. Both the Eighth and Ninth circuits struck down the federal statute based on the Supreme Court's decision in Stenberg.
      However, Stenberg was a 54 decision, with Justice Stephen Breyer's majority opinion joined by Justices John Paul Stevens, Sandra Day O'Connor, David Souter, and Ruth Bader Ginsburg. Now that Justice O'Connor has been replaced by Justice Samuel Alito, a number of questions surface about current personnel and past precedent. Will the Court reverse Stenberg? Will Chief Justice John Roberts and Justice Alito join with Justices Antonin Scalia and Clarence Thomas in calling for overruling Roe v. Wade (410 U.S. 959 (1973))? And will Justice Anthony Kennedy follow precedent even though he wrote a vehement dissent in Stenberg?
     
      Race and School Assignments
      Two cases will address the issue of whether school systems may use race in assigning students to elementary and secondary schools to achieve desegregation. In Parents Involved in Community Schools v. Seattle School District No. 1 (426 F.3d 1162 (9th Cir. 2005), cert. granted, 126 S. Ct. 2351 (2006)), the Court will consider a Seattle plan that allows students entering ninth grade to choose among high schools. If a Seattle school is oversubscribed and racially imbalanced, race is used in choosing which students to admit. And in Meredith v. Jefferson County Board of Education (416 F.3d 513 (6th Cir. 2005), cert. granted, 126 S. Ct. 2351 (2006)), the Court will consider magnet schools created in Louisville, Kentucky, to achieve desegregation. Student assignments are based on racial guidelines, geographic boundaries, and student choices.
      More than a decade ago, in Grutter v. Bollinger (539 U.S. 982 (2003)), the Court held that colleges and universities have a compelling interest in creating a diverse student body and may use race as one factor in admission decisions. Grutter was a 54 decision, with Justice O'Connor writing for the majority, joined by Justices Stevens, Souter, Ginsburg, and Breyer. Opponents of affirmative action are hoping that the two new justices, Roberts and Alito, will join with Justices Scalia, Kennedy, and Thomas and overrule Grutter.
      However, defenders of the Seattle and Louisville programs argue that these cases are about school desegregation, not affirmative action; the cases are not about using race to decide who gets admitted to an institution, but rather assigning students within an institution.
     
      Punitive Damages
      In Phillip Morris USA v. Williams (127 P.3d 1165 (2006), cert. granted, 126 S. Ct. 2329 (2006)), the Court will return to the issue of when large punitive damage awards violate due process. Mayola Williams's husband died of lung cancer after 40 years of smoking cigarettes made by Phillip Morris. The Oregon court of appeals upheld the jury's verdict of $821,485.50 in compensatory damages and $79.5 million in punitive damages--and the state supreme court affirmed.
      In past decisions--in BMW v. Gore (517 U.S. 559 (1996)) and State Farm v. Campbell (538 U.S. 408 (2003))--the Court found that excessive punitive damages violate due process. In the Phillip Morris case the Court will consider whether a jury can consider harm to others in addition to the plaintiff and whether highly reprehensible conduct warrants punitive damages almost 100 times greater than the compensatory damages.
      Again, the two new justices may be key. BMW was a 54 decision with Chief Justice William Rehnquist and Justice O'Connor in the majority; State Farm was 63, also with those two justices in the majority. If Roberts and Alito now take the position expressed by Justices Scalia and Thomas--that due process does not limit the size of punitive damage awards--there could be a dramatic change in the law.
     
      Criminal Procedure
      Some of the most interesting criminal cases on the docket involve California law. In a case of potentially enormous significance, the Court will consider whether California's Determinate Sentencing Law violates the Sixth Amendment by permitting sentencing judges to impose enhanced sentences based on a determination of facts not found by the jury or admitted by the defendant. (Cunningham v. California, 2005 Cal. LEXIS 7128, cert. granted, 126 S. Ct. 1329 (2006).)
      In Carey v. Musladin (427 F.3d 653 (9th Cir. 2005), cert. granted, 126 S. Ct. 1769 (2006)), the Supreme Court will consider whether a defendant's Sixth Amendment right to a fair trial was violated when three members of the murder victim's family wore memorial buttons in the courtroom in clear view of the jurors.
      And in two cases originating from other states, the Court will consider whether some of its most important recent rulings in favor of criminal defendants--one limiting the use of hearsay evidence and another requiring that facts that are the basis for the punishment imposed must be proved beyond a reasonable doubt--apply retroactively. (Whorton v. Bockting (399 F.3d 1010 (9th Cir. 2005), cert. granted, 126 S. Ct. 2017 (2006)) and Burton v. Waddington (142 Fed. Appx. 297 (9th Cir. 2005), cert. granted, 126 S. Ct. 2352 (2006).)
     
      Erwin Chemerinsky (chemerinsky@law.duke.edu) is the Alston & Bird Professor of law and political science at Duke Law School. He thanks Tadhg Dooley and Lauren Gindes for their research assistance with this article.
     

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