Abortion, Race Cases on Agenda

By the same token, if Kennedy sticks with his 2000 stance against partial birth abortion and votes to uphold the federal law, he could be viewed as:

• Conservative, because he will again join the camp of abortion rights opponents;
• Liberal, because he will be supporting the view that Congress has broad power to override the views of states;
• Activist, because he will be overturning recent precedent; or
• Nonactivist, because he will be showing deference to elected legislators.

“Which Kennedy will show up?” asks Florida International’s Baker. “The ‘Casey’ Kennedy or the ‘Stenberg’ Kennedy?” He thinks it may be the latter, with Kennedy adhering to his dissent in Stenberg by voting to uphold the federal ban.

“The late Justice Potter Stewart would dissent one year, then feel honor-bound to follow the precedent the next year,” says Baker. “I don’t see that in Kennedy’s jurisprudence.”

RACE JUDICATA

Similar issues of precedent will influence the Court’s consideration of two race cases, Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education. The Sixth and Ninth circuits upheld plans in Kentucky and Seattle, respectively, that use race as a factor in assigning students to public schools to achieve diversity.

Though the cases pose somewhat different issues than those raised by the higher education program upheld in the 2003 affirmative action case Grutter v. Bollinger, many analysts see that precedent now up for grabs. Again, O’Connor was in the majority in Grutter, and Kennedy was in dissent.

“It will be very hard to overturn the school cases without overturning Grutter, even if the opinions claim they are not doing so,” says court historian David Garrow, who teaches at the University of Cambridge in England. “The court is institutionally disinclined to discard its own high-visibility precedents.”

The court’s business docket occupies an unusually high proportion of the cases it’s accepted for this term � namely, 13 of the 29 granted review so far � said veteran advocate Roy Englert Jr. of Robbins, Russell, Englert, Orseck & Untereiner at a Chamber of Commerce briefing. Continuing its recent trend of heightened interest in antitrust issues, he said, the court is expected to rule in “a minimum of five” antitrust disputes this term.

But the most high-profile business cases so far involve the following:

• Punitive damages. In Philip Morris v. Williams, set for argument Oct. 31, business groups are hoping the court will continue down the road it took in the 2003 decision State Farm v. Campbell, which sought to temper punitive damage awards. The 2003 ruling suggested a maximum of a 9-1 ratio between punitive and compensatory damages, but states have responded in widely varying ways. In the case before the court, an Oregon jury awarded Mayola Williams $79 million in punitive damages on top of an $895,000 compensatory award. “This is the first case Roberts and Alito will decide in the punitive damages area,” says Mark Levy, counsel at Kilpatrick Stockton in Washington. Both, he says, are “up for grabs.”
• Patents. In KSR International v. Teleflex the court will consider an issue that arises in almost every patent dispute: When is an invention so obvious that it does not deserve a patent? The Federal Circuit U.S. Court of Appeals set a standard for assessing obviousness that critics say has allowed too many patents to be approved.
• Global warming. The court will review the Environmental Protection Agency’s determination that it has no authority to regulate emissions of carbon dioxide and other greenhouse gases emitted by cars. The EPA also said scientific uncertainty about the effect of these gases on the global climate led it to decide it should not regulate these emissions. In Massachusetts v. EPA, 12 states challenged a ruling by the D.C. Circuit U.S. Court of Appeals that the EPA had “properly exercised” its discretion in declining to regulate.