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U.S. Supreme Court

Which Precedents Will Fall Under Roberts? Commerce Clause Powers May Survive

Posted Jan 14, 2011 6:30 AM CDT
By Debra Cassens Weiss

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Chief Justice John G. Roberts Jr. may not carry a sword, as his son surmised after his dad’s confirmation, but he is nonetheless a powerful man. Just how far will he use his influence to take the U.S. Supreme Court in a conservative direction?

A profile in Fortune has some speculation. “The question is not where the court is headed—it is headed to the right —but rather how quickly and how far,” the magazine says. “The exclusionary rule, requiring courts to exclude illegally seized evidence in criminal cases, hangs by a thread. Abortion rights could erode further. More shoes are apt to drop in the realm of race and gender discrimination: Not only is affirmative action on the ropes, but some justices believe that key provisions of the civil rights laws—those allowing violations to be proved by statistical disparities—are unconstitutional.”

Roberts is likely to cast a conservative vote if the justices hear the challenge to Proposition 8, the California referendum banning gay marriage, the article predicts. He is a staunch supporter of presidential power in national security cases.

But Roberts’ “respect for precedent and his concern for the court as an institution are real, and do act as significant restraints on his jurisprudence,” the story says. Many observers believe New Deal precedents giving Congress broad powers to regulate the economy will continue to stand. Most experts have predicted that the new health-care law will be upheld by the court, though some judges hearing the legal challenges see constitutional problems.

The article says the Roberts court will be called on to decide key questions that defy conservative and liberal labels, including cases involving technology and privacy, jurisdiction in a global economy, and the application of intellectual property laws to new technologies. “When those tough questions of the future arrive, we'll have the comfort of knowing that there will be a smart guy with intellectual integrity leading the court that has to grapple with them,” the article says.

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