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Supreme Court to tackle race, abortion in new term

By Bill Mears
CNN Washington Bureau
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WASHINGTON (CNN) -- Abortion and race: The two most divisive social issues of recent decades will get high-profile hearings this fall before the U.S. Supreme Court.

The justices begin their new term Monday but will postpone hearing arguments for a day in observance of Yom Kippur.

The Supreme Court is proceeding forcefully under new Chief Justice John Roberts. In addition to abortion and affirmative action, the docket includes meaty issues such as immigration, a attempt to limit multimillion dollar jury awards, a criminal defendant's fair trial rights and the government's ability to control smog.

"In the term that's about to start, the Supreme Court has really stepped into the biggest social issues of the day," observed Thomas Goldstein, an attorney who has argued numerous cases before the high court.

Goldstein added that conservatives on the court may be looking to scale back some of the more liberal rulings of the past. "They may cut back on programs that look like affirmative action and expand the power of government to regulate abortion," he said.

Most of the attention will be focused on a federal law banning a controversial procedure that critics call "partial birth" abortion.


The politically sensitive abortion issue comes before the court again on November 8 -- the day after the midterm elections.

A pair of cases arise from a federal law banning a specific, controversial late-term abortion procedure critics call "partial birth" -- medically, "intact D and E."

The deciding vote could be cast by the high court's newest member, Justice Samuel Alito. The conservative jurist replaced Sandra Day O'Connor, who for a quarter of a century was a key swing vote upholding the basic right to abortion.

"We'll be able to take the temperature of the justices based on their questions, the opinions they write, whether they've moved one more vote toward overruling Roe v. Wade," Goldstein said, referring to the landmark 1973 abortion-rights case.

The federal law banning the procedure has never gone into effect, pending the outcome of more than three years of legal appeals.

Three federal appellate courts struck down the 2003 law as unconstitutional because it did not provide a health exception to pregnant women facing a medical emergency. The Bush administration appealed to the Supreme Court.

"The politicizing of the court didn't happen by accident," said Nancy Keenan, president of the NARAL Pro-Choice America. "President Bush and his far-right allies in Congress pushed for the passage of this ill-conceived and unconstitutional law.

"Then the president and anti-choice senators worked to put judges on the bench who will open the doors for politicians to invade our private medical decisions by letting a law like this one stand."

The Justice Department has argued the lower courts viewed the issue wrongly. Those lower rulings overrode Congress' "carefully considered finding, following nine years of hearings and debates, that partial-birth abortion is never necessary to preserve a mother's health," Solicitor General Paul Clement wrote in a brief filed with the court.

Many conservatives said they are not so sure there will be a seismic shift on abortion.

"I don't think the court will reverse Roe v. Wade," said Theodore Olson, former solicitor general under President Bush and a leading appellate attorney.

"I think the two newest justices, Chief Justice Roberts and Justice Alito, have said they respect the doctrine of precedent. And that decision is firmly embedded in our constitutional law," Olson said. "They are conservatives in the sense that they will respect precedent."

Affirmative action

The second potential blockbuster deals with what role affirmative action should play in selecting students for coveted spots in choice elementary and secondary schools.

Separate cases from Seattle, Washington, and Louisville, Kentucky, could reignite decades-old disputes over race and public education. A ruling could help clarify when and to what lengths state and local officials can go to promote diversity in K-12 education.

The stakes are high, affecting perhaps every public school student in the nation's 95,000 school districts.

In a landmark case three years ago, the Supreme Court said racial quotas are unconstitutional but offered a limited and powerful endorsement of affirmative action in higher education. The justices agreed race can be used as a one factor in admissions to state-funded colleges as part of an overall effort to achieve diversity in the classroom.

The separate disputes began when parents organized against school district plans. The parents said their children should be given preference to attend schools closest to their homes and that the school-choice plan has divided communities.

"Race has no place among the three R's," said attorney Russ Brooks, representing the Seattle parents who brought the suit. "Unfortunately, the Seattle school district still judges children by the color of their skin."

Many parents have complained about the varying quality of schools. They also say student assignment plans violate federal laws prohibiting racial discrimination and racial preferences in employment, contracting and public college admissions.

"What we do sense is that Roberts and Alito may not be sufficiently wedded to the idea that there should be counting by the numbers on the basis of race," said Kenneth Starr, a former federal judge and solicitor general who is dean at California's Pepperdine University School of Law.

Unlike Seattle, Louisville had a long history of segregated schools, and the district was under federal oversight for about 25 years, ending in 1999. In 2001, Jefferson County officials began a program that included racial guidelines.

School officials have defended their programs.

"We voluntarily maintain our school desegregation plan," said Pat Todd, who coordinates the school choice plan for schools in Jefferson County, Kentucky.

The affirmative action cases will be heard in December. Rulings are expected next year in all the cases on the court's fall docket.

Chief Justice John Roberts is at the helm as the high court takes up major social issues.



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