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Back in Session

It's the first full year for the Supreme Court's new team, and there are some tough issues on the docket

By Linda Greenhouse in Washington


The Supreme Court is made up of just nine people with lifetime appointments, so changing even one can make a big difference, and for a long time. Last term, two new Justices joined the Court, including Chief Justice John G. Roberts Jr. The new term, which began last month, could give a clearer picture of the direction of the Roberts Court.

"I think this term is when the new Court is really going to define itself," says Jack Beermann, a law professor at Boston University.

Roberts assumed the leadership of the country's highest court in October 2005. Justice Samuel A. Alito Jr. took his seat four months later, replacing Justice Sandra Day O'Connor, the first woman on the Court.

Appointed by President Reagan in 1981, O'Connor was often the "swing vote" in cases decided by 5-to-4 votes. With O'Connor gone, Justice Anthony M. Kennedy appears to be emerging as the new swing vote.

There's also the possibility of further changes in the lineup: With four Justices over 70—including 86-year-old Justice John Paul Stevens, who has been on the Court for 31 years—President Bush may have the opportunity to make additional appointments in his last two years in the White House.

One of the most important decisions to come out of the last term was Hamdan v. Rumsfeld, which invalidated the system of military commissions Bush had set up for trying terrorism suspects held at the Guantánamo Bay naval base in Cuba. The Court said the commissions needed authorization from Congress, and that they violated the provision in the Geneva Conventions requiring humane treatment of prisoners, which the Court said does apply to terrorism suspects.

The decision was seen as a rejection of the Bush administration's broad interpretation of presidential powers. It prompted Congress to pass legislation in September spelling out procedures (which are also likely to be challenged in court) for how terrorism suspects will be tried. Here are some important cases to watch this year:

Racial Quotas in Schools.
The Court will consider whether public-school systems can take race into account in assigning students to schools. It will hear challenges to policies in Louisville, Ky., and Seattle that use race as a factor in deciding which schools students attend as a way to maintain racial balance. The Bush administration is arguing that such race-based assignment plans are unconstitutional.

Three years ago, in a 5-to-4 decision in Grutter v. Bollinger, which involved admissions at the University of Michigan law school, the Court upheld the consideration of race in university admissions.

The decisions in the Louisville and Seattle cases will provide the first clear indication of the new Court's thinking on questions of race and public policy. Chief Justice Roberts gave a hint of his position last year when he wrote, in an opinion on another case, "It is a sordid business, this divvying us up by race."

Punitive Damages.
In a case against cigarette maker Philip Morris, an Oregon jury awarded the family of a smoker who died from lung cancer $79.5 million in punitive damages. The question before the Court is whether there should be limits on the punitive damages that juries award.

Fair Trials.
Last month, the Court heard arguments in a California case in which a defendant charged with murder says he was denied a fair trial because the victim's family attended the trial wearing buttons showing the victim's face. The Court will consider whether the buttons unfairly prejudiced the jury.

Abortion.
This month, the Court will hear the Bush administration's defense of the Partial-Birth Abortion Ban Act of 2003, which barred a particular surgical procedure used to perform late-term abortions. The Court will have to decide whether the federal ban is constitutional.

In a similar case six years ago, the Court voted 5 to 4 that the law had to include exceptions to allow the procedure when it was medically necessary for the woman's health. The 2003 law the Court is now considering includes no such provision.

Air-Pollution Regulation.
Sixteen states are suing the Environmental Protection Agency for failing to regulate motor-vehicle emissions that they say contribute to global warming. The administration says that Congress did not give the federal government the authority to regulate those emissions in the Clean Air Act.

However the Court decides these and other cases, it will be a lot easier this year to follow the proceedings. For the first time, the Court is posting transcripts on the day cases are argued at www.supremecourtus.gov. While the Court continues to resist television coverage of its sessions, the transcript change is a step toward public access that would have been unthinkable only a few years ago.