- The Washington Times - Sunday, October 2, 2005

Chief Roberts to color new term

The U.S. Supreme Court returns to work this week with a new chief justice, ready to decide whether doctors in Oregon can help terminally ill patients commit suicide and who is allowed to challenge state laws that restrict abortions.

During its new term, which begins today, the high court also is expected to consider cases involving the First Amendment rights of religious freedom and free speech. The justices also could choose to review a major anti-terrorism case that challenges the constitutionality of using military commissions to try foreign nationals for war crimes.

The panel has already put 48 cases on its docket for the term — a little more than half its usual workload of about 80 cases — and is slowly filling up the rest of its calendar.

Court scholars say the term is shaping up to be a routine one, without the potential for many blockbuster opinions on hot-button social issues. Instead, the nine justices will devote much of their time to settling nuts-and-bolts legal issues, such as continuing to define the procedures that police officers must use when searching homes.

“I don’t see a lot out there that looks like we’re headed toward 1954 or 1957 or what we got three years ago” when the court issued sweeping decisions on school desegregation, affirmative action and other issues, said Kermit Hall, a constitutional law scholar and president of the University at Albany. “Those were big terms for the court.”

The most interesting aspects of the new term might turn out to be how the justices work together after the first changes in the panel’s makeup in 11 years. Newly confirmed Chief Justice John G. Roberts Jr. will lead the court, having succeeded the late William H. Rehnquist. Meanwhile, retiring Justice Sandra Day O’Connor will stay on until the Senate confirms her replacement — an event that is probably months away.

During her 24 years as a justice, Justice O’Connor has often been the decisive vote on such issues as abortion and affirmative action, a role that could pose problems this term in cases that haven’t been decided by the time she officially leaves the court, even though she was there for the arguments. Cases in which the court’s opinion is not issued by the time Justice O’Connor’s replacement is confirmed probably would be reheard next year, after her successor is in place. If the panel issues any 4-4 rulings, the lower court ruling would be affirmed, without setting a precedent for future cases.

One case that could be affected by Justice O’Connor’s role as a temporary justice is the federal government’s challenge to Oregon’s physician-assisted suicide law.

At issue is an 11-year-old law that allows doctors to facilitate the suicide of certain terminally ill patients by prescribing them legal drugs. The statute has been affirmed twice by Oregon’s voters, but it drew the ire of former Attorney General John Ashcroft, who said it violated the federal Controlled Substances Act, which defines illegal drug use. In 2001, Mr. Ashcroft ordered the revocation of drug-writing privileges for any doctor who helped a patient commit suicide under the state statute.

A group of Oregon residents challenged Mr. Ashcroft’s directive, and so far, they have had success in lower federal courts. Most recently, the U.S. Court of Appeals for the 9th Circuit blocked Mr. Ashcroft’s order from being followed, saying the former attorney general overstepped his authority and inappropriately tried to trump an issue — health care — normally decided by states. The federal government appealed to the Supreme Court.

So far, the high court is set to weigh in on two cases that involve questions about the scope of abortion rights. In one, the Supreme Court will consider a New Hampshire law that requires minors get the consent of a parent before having abortions. But the court is set to decide only the question of who is allowed to challenge abortion restrictions as unconstitutional.

In the other case, the court is being asked to settle a long-running dispute that pits the National Organization for Women and abortion providers against pro-life protesters. In the case, first filed in 1986, pro-choice advocates are trying to use federal anti-racketeering laws to thwart protesters who block access to abortion clinics.

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