Key decisions still remain for U.S. Supreme Court

Mark Sherman

WASHINGTON — Important cases on race in schools, campaign finance and student speech rights are still to be decided before the Supreme Court adjourns for the summer.

The outcome of those cases, as well as a dispute over President Bush’s faith-based program, will help show how far to the right Bush’s two nominees, Chief Justice John Roberts and Justice Samuel Alito, have moved the court.

The justices have about 25 opinions to issue — more than one-third of the 71 cases they have heard since October — before they leave town at the end of June for teaching gigs, foreign travel and vacations.

Challenges to the use of race in assigning students to public schools in Louisville, Ky., and Seattle were argued nearly six months ago. At the time, a majority of the justices appeared inclined to strike down one or both plans.

The issue then seemed to be how far the court was prepared to go in limiting the use of race in fostering diversity in public schools.

Nothing since the argument has dispelled the concerns of supporters of the school system plans, said Steven Shapiro, legal director of the American Civil Liberties Union.

“Obviously, what matters in those cases is not only the result but how the court reaches it. If the court says the plans were not properly constructed, that’s different from saying you can never take race into account,” Shapiro said.

Decisions in blockbuster cases often come in a term’s final days, although the court already has issued opinions in abortion and global warming cases.

The last argument of the term concerned the constitutionality of a federal ban on the airing of so-called issue ads that mention a candidate’s name in the weeks before an election. The court previously upheld the ban, but now is being asked to overturn its earlier ruling, or at least permit corporations and labor unions to air the ads in some circumstances.

Among the more colorful pending matters is the “Bong Hits 4 Jesus” case, testing the limits of students’ speech rights. Another First Amendment case asks whether taxpayers can go into federal court to challenge spending by the White House Office of Faith-Based and Community Initiatives.

The justices also have to decide whether a Texas death row inmate is so mentally ill as to preclude his execution. Another criminal case involves whether passengers in private autos may challenge the constitutionality of traffic stops by police.

The first full term of the new Roberts court has produced few surprises so far, with an anticipated tilt toward more conservative outcomes, several victories for business interests and a key role for Justice Anthony Kennedy, the court’s so-called swing vote. Kennedy has been the only justice in the majority in every one of the court’s 13 5-4 decisions so far.

In one of those 5-4 decisions, the court for the first time upheld a nationwide ban on an abortion procedure. The result almost certainly would have been different had Alito’s predecessor, Justice Sandra Day O’Connor, still been on the court.

Yet, “it would be too much to say all the hot-button cases were decided on the conservative side,” said Richard Garnett, a visiting professor at the University of Chicago Law School.

With Kennedy again providing the key vote in a 5-4 ruling, the court ordered the Bush administration to take another look at whether it should regulate emissions of carbon dioxide and other greenhouse gases from new vehicles. It was the court’s first global warming case.

The number of closely divided decisions suggests that Roberts’ goal of greater consensus on the court is “more theoretical than real,” as Shapiro said. Or as Justice Antonin Scalia recently remarked when asked to assess the likelihood of fewer split decisions, “Lotsa luck.”

Retirements typically are announced at the end of the term, although there has been almost no speculation that anyone is planning to step down.

Four justices, though, are at least 70. Justice John Paul Stevens is 87, Justice Ruth Bader Ginsburg is 74, Scalia is 71 and Kennedy is 70.

(Associated Press)