Hot Issues Facing New Chief Justice

Chief Justice John Roberts, meet party girl Anna Nicole Smith.

Life-and-death issues, literally, will captivate the Supreme Court during its 2005-2006 term, which began Monday.

While the Senate considers President Bush’s nomination of White House counsel Harriet Miers to replace Sandra Day O’Connor on the court, the justices will tackle the death penalty, DNA, physician-assisted suicide and impediments to abortion. They will review law schools that resist Pentagon recruiting, and states that lure businesses with tax breaks.

The court’s challenges, moreover, will extend beyond the strict legal questions embodied in the 48 cases that justices have already agreed to hear. Several dozen additional cases will fill out the court’s docket in coming months.

More broadly, Roberts will be learning to assert his authority as the first new chief justice of the 21st century. O’Connor will serve as a lame duck while the Senate fights over her replacement.

By the time summer vacation starts next June, justices will have confronted some of the most sensitive constitutional issues imaginable. These include abortion, the topic that dominated the Roberts confirmation debate, though the scope of the decision-making is unclear.

“Nobody, including me, thinks a Roberts Court is about to overrule Roe v. Wade,” Georgetown Law Center professor Nina Pillard said. “I think looking at the issues in those terms diverts attention from the real battleground.”

Instead, Pillard said, the court will take up “the nature of the protection afforded the abortion right” in cases like Ayotte v. Planned Parenthood of Northern New England. One of two abortion cases now scheduled, Ayotte questions whether New Hampshire gives pregnant minors seeking an abortion sufficient latitude. The state waives a 48-hour parental notification requirement if the young woman’s life is endangered; pro-choice advocates think this health exemption should be broader.

And then there are the many technical disputes facing the court, some of them dolled up in gaudy facts.

Marshall v. Marshall is one. Put simply, the justices will rule which courts have a say over disputed estates.

The eye-catching estate, though, amounted to $1.6 billion amassed by Texas businessman and former Yale Law School assistant dean J. Howard Marshall. He was 89 when he married the 26-year-old former stripper who named herself Anna Nicole Smith, and Smith claims Marshall promised half of his estate to her. Initially shut out, Smith won $484 million in one court. Another court later reduced it to $88 million.

Ultimately, an appellate court gave Smith nothing. The question now is whether a federal court in California or a probate court in Texas is the proper venue for settling the affairs of the woman still known legally as Vickie Lynn Marshall.

“Her appetite for money, once developed, was incessant and outlandish by everyday standards,” Los Angeles-based U.S. District Judge David O. Carter wrote, adding that Smith “was willing to compromise her prime modeling years for someone who showered her with gifts.”

Now, the one-time Playboy Playmate of the Year and reality TV star whose “illiteracy is striking,” in the words of Judge Carter, will have her financial future in the hands of the Harvard-trained Roberts and his court colleagues. The improbable intertwining of fates could take center stage in January, about four months into Roberts’ tenure as chief justice.

By then, Roberts will have revealed more of his leadership style. Each week, for instance he will prepare the roster of cases discussed at the closed-door meetings where justices decide which cases will be formally heard.

“The chief justice has a real opportunity to influence that, because he makes the (initial) list,” noted Beth Brinkman, a Washington attorney and former assistant to the U.S. solicitor general. “Procedure can sometimes affect substance.”

The workload will be one consequence to watch for. Under the late Chief Justice William Rehnquist, the court decided fewer and fewer cases. During 2004-2005, the court ruled on 74 cases, down from over 120 a year in the mid-1980s.

Having already argued 39 cases before the Supreme Court, and clerked for Rehnquist for a year, Roberts knows the inner workings of the tradition-bound body. Still, even if he wants the court to pick up its pace, he may move deferentially as the new guy. Roberts has only about two years on the appellate bench. The justices over whom he’s now chief have a combined total of 118 years service on the Supreme Court.

“They may have tremendous respect for him, and they may be all delighted in a personal manner that this is someone they could work with,” Georgetown law professor Richard Lazarus said, “but boy, they are going to be interested in influencing him as the chief in the next few years. So there is going to be a lot of jockeying for position.”

Justice Anthony Kennedy, in particular, will bear watching. With O’Connor’s pending departure, and with Roberts taking the leadership title that he might have wished for himself, Kennedy stands to re-assert his own role as the court’s important voice.

Kennedy, for instance, could be pivotal in the closely watched case called Rumsfeld v. Forum for Academic and Institutional Rights. The case, to be argued Dec. 6, pits the Pentagon against law schools that block military recruiters from access to the same opportunities granted other recruiters. The law schools contend they can’t abide by the military’s “don’t ask, don’t tell” policy concerning gays. Kennedy, though he can be deferential to national security arguments, also authored an impassioned 2003 opinion striking down a Texas anti-sodomy law.