The National Pusle

Great Taste, Less Filling

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The U.S. Supreme Court returns to the bench this month facing a fall lineup that includes major cases on abortion, school integration and global warming. The justices also will revisit the issue of punitive damages to decide for certain whether the size of these jury awards is strictly limited by the Constitution. And in a pair of cases that could create a headache for state prosecutors, the court will consider whether to apply retroactively its recent rulings on the confrontation right and sentencing enhancements.

But the mystery of the shrinking docket remains unsolved, despite the arrival last term of Chief Justice John G. Roberts Jr. In the past 20 years, the justices have cut their workload in half, and several of them have said they can’t point to a single explanation for the decline.

In the late 1970s and early 1980s, the court routinely heard four cases a day and typically issued more than 150 written opinions each term. In recent years, by contrast, they have heard only two a day and finished arguments by noon. These days, they typically issue fewer than 75 opinions. When the justices recessed in June, they had issued only 69 written opinions for the term.

In his days as a Washington, D.C., lawyer practicing before the court, Roberts believed the court could and should take up more cases. He repeated his view during his Senate confirmation hearings. But, to his surprise, it has not been as easy as he anticipated to spot large numbers of cert worthy cases. By the end of June, the justices had granted only 31 cases to be heard this fall, as compared with 41 at the same time last year and 47 the year before.

Still, the justices are not shy about intervening in major controversies. Last fall, the court voted to take up a challenge to President Bush’s proposed military tribunals and ultimately struck them down in a 5 3 decision, with Roberts on the sidelines. In June, the court voted to take up a challenge to the Bush administration’s failure to regulate the auto emissions that are blamed for global warming, a move that was hailed by environmentalists.

A few weeks earlier, the court voted to accept a challenge to the voluntary school integration efforts that replaced the mandatory desegregation policies of decades past. These new policies usually limit the enrollment of students because of their race. Conservatives applauded this move and said they hoped the court would outlaw the overt use of race for deciding who can attend an elementary and secondary school.

The school cases also permit the court to revisit the subject of affirmative action, this time without Justice Sandra Day O’Connor. Three years ago, she spoke for a 5 4 majority in ruling that colleges and universities have a compelling interest in maintaining racial diversity in their classes. For that reason, they may consider a minority student’s race as a factor in admissions. Grutter v. Bollinger, 539 U.S. 306. The dissenters included Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. They are now joined by two Reagan administration veterans, Roberts and Justice Samuel A. Alito Jr., both of whom have said they are skeptical of the government using race to make decisions.

Race and Enrollment

The schools of Louisville, Ky., had a history of racial segregation, and for 25 years they operated under the supervision of a federal judge. After the desegregation decree was lifted in 2000, the school board adopted enrollment guidelines designed to preserve integration. The plan calls for each school to have between 15 percent and 50 percent black students. Crystal Meredith sued the school district after her son Joshua was told he could not enroll in the elementary school across the street from where she lived because he is white. Meredith v. Jefferson County Board of Education, No. 05 0915.

Seattle does not have a similar history of official segregation, but it, too, sought to maintain a racial balance for its high schools. A group of parents sued after 300 students, most of them white, were turned down for admissions to their first choice school because of their race. They, too, say the school board’s policy violates the equal protection clause of the 14th Amendment. “In our view, absent past discrimination, it is impermissible to use race in making government decisions,” said Harry J.F. Korrell of Seattle, a lawyer for the parents. Parents Involved in Community Schools v. Seattle School District, No. 05 0908. The court voted to hear both cases together.

The global warming case could be dubbed “the attack of the blue states.” Massachusetts, New York, Illinois and California have joined forces with others from the Democratic leaning states of the Northeast and Pacific Coast to challenge the Bush administration and the Environmental Protection Agency for failing to adopt new anti pollution restrictions for cars, trucks and power plants.

They point to a provision of the Clean Air Act that says the regulators must take action against “any air pollutant” that “may reasonably be anticipated to endanger public health or welfare.” The law defines the public welfare to include effects on the weather and the climate, and they said the scientific evidence is clear that carbon dioxide and other greenhouse gases are causing global warming. They sued seeking to force the EPA to act and lost in the lower courts, but the justices voted to hear the case of Massachusetts v. Environmental Protection Agency, No. 05 1120.

The court will hear a second major environmental case this fall to decide whether coal burning power plants must comply with stricter emissions standards. This time, however, the Bush administration, in defending federal agency rules, has joined the case on the side of the environmentalists. Environmental Defense v. Duke Energy Corp., No. 05 0848.

The abortion case is a rerun of the battle over so-called partial-birth abortions, which is how abortion opponents describe one common method of performing midterm abortions. Six years ago, the Supreme Court struck down a Nebraska ban on the procedure and agreed with medical experts that the disputed surgical procedure may be safer for the woman because of a reduced risk of infection and bleeding. But the ruling came on a 5 4 vote, with Justice O’Connor in the majority. Undaunted, Congress passed a federal ban on the procedure, and this fall the court will consider that measure. Gonzales v. Carhart, No. 05 0380.

Damage Assessment

The punitive damages case is also a rerun of sorts. At issue is whether a jury can award to one plaintiff punitive damages that are based on the harm suffered by thousands of others. Three years ago, in State Farm v. Campbell, 538 U.S. 408, the court struck down a $145 million punitive verdict against the auto insurer that grew out of a single accident in Utah. The motorist had been awarded $1 million for emotional distress after the auto insurer refused to cover losses that exceeded his liability limit. These punitive damages were grossly excessive, the Supreme Court said, and “in practice, few awards exceeding a single digit ratio between punitive and compensatory damages … will satisfy due process.”

Undeterred, the Oregon Supreme Court earlier this year upheld $79.5 million in punitive damages against cigarette maker Philip Morris in the case of Jesse Williams, a school custodian who died of cancer after smoking for 45 years. The court awarded his family $21,485 in economic damages and $500,000 in noneconomic damages. “There can be no dispute that Philip Morris’ conduct was extraordinarily reprehensible,” and it “harmed a much broader class of Oregonians,” the state justices said in upholding the punitive damages. In Philip Morris USA v. Williams, No. 05 1256, lawyers for the tobacco maker argue that punitive damages may not be used to “punish the defendant for the harms suffered by nonparties.”

Finally, the court will consider whether prisoners whose convictions are final can take advantage of constitutional rulings in 2004 barring the use of some out of court testimony and forbidding judges, when acting alone, from adding to prison sentences.

In Blakely v. Washington, 542 U.S. 296, the court struck down that state’s sentencing guidelines because judges were authorized to add years to a prison sentence. In Burton v. Waddington, No. 05 9222, inmate Lonnie Lee Burton says he should be permitted to take advantage of that ruling, which was handed down after he was sentenced.

That same year, the court barred the use of most out of court statements. Crawford v. Washington, 541 U.S. 36. Last year, the San Francisco-based 9th U.S. Circuit Court of Appeals said the ruling may be applied retroactively to reopen the cases of prisoners whose convictions depended on such hearsay testimony. This fall, in Whorton v. Bockting, No. 05 0595, Nevada’s state attorneys will urge the court to reverse that decision and to limit the impact of the Crawford ruling.

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

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