WASHINGTON – A new Supreme Court term opens Monday with eyes on its leader, the junior justice, the oldest and the man in the middle as abortion, race and other familiar issues resurface.
President Bush's two conservative appointees, Chief Justice John Roberts and Justice Samuel Alito, give opponents of abortion and affirmative action reason to hope the high court will move in their direction. It was only a few years ago that a different mix of justices seemingly settled some of these questions in high-profile cases.
The outcome of new challenges to a type of late-term abortion, called partial-birth abortion by opponents, and the use of race in assigning students to public schools will "tell us a little bit about the soul of the Roberts court," said Steven Shapiro, national legal director of the American Civil Liberties Union.
Roberts has talked about seeking greater unanimity on the court, but the results in these cases are unlikely to produce anything close to a consensus.
The retirement of Justice Sandra Day O'Connor leaves Justice Anthony Kennedy, in his 19th year on the court, as the most likely vote to swing between the court's four liberals and four conservatives.
"All eyes are on Kennedy," said former Whitewater independent counsel Kenneth Starr.
At 86, Justice John Paul Stevens is the leader of the court's liberal wing and shows no signs of slowing down. Last term, he wrote the opinion in the year's biggest case, striking down Bush's plan to try some suspected terrorists before military commissions.
Stevens was the most prolific of the justices last year, writing 27 majority opinions, concurrences and dissents. Stevens marks his 31st year on the court in December.
Important cases on the environment, the size of jury awards, prison sentences and immigrants also are on the calendar, along with a heavier-than-usual dose of business cases.
Legal disputes stemming from the Bush administration's treatment of terrorism suspects, warrantless monitoring of Americans' communications and efforts to invoke national security claims to stop lawsuits could reach the court by the time the term ends in June.
The justices' work will get off to an unusual start. The traditional opening day, the first Monday in October, coincides with Yom Kippur, the Jewish day of atonement.
The court will convene briefly to issue orders and swear in lawyers to the Supreme Court bar, but hear no arguments in cases. Arguments are scheduled Tuesday in two cases. Two of the nine justices — Ruth Bader Ginsburg and Stephen Breyer — are Jewish and are not expected in court Monday.
The abortion question before the justices this term is whether the federal Partial Birth Abortion Ban Act is invalid because it does not allow for the procedure to protect the health of the mother
The court struck down a similar Nebraska law in 2000 on those very grounds. In addition, in a rare unanimous ruling in January, the justices reaffirmed that a state could force girls under age 18 to tell their parents before having an abortion, provided there was an exception for medical emergencies.
There are differences between the current case and the one from Nebraska, including the greater deference paid by the court to acts of Congress, that could lead to a different outcome. On the other hand, some justices are uncomfortable overturning earlier decisions, which could favor invalidating the federal law.
But the major difference this time is the change among the justices, said Randy Barnett, a Georgetown University law professor.
O'Connor was part of the 5-4 majority in the 2000 case. Her place has been taken by Alito; people on both sides of the issue expect him to side with abortion opponents.
Kennedy was in the minority six years ago, writing a vehement dissent in support of the Nebraska law. "There are certainly enough votes to flip the issue if Justice Kennedy continues to take the same position," Barnett said.
The new lineup could be a major factor in the public school diversity cases from Seattle and Louisville, Ky. At issue is whether school districts can use race as a factor in determining who gets into oversubscribed schools.
Both systems based their slightly different policies on their desire to have the racial makeup of schools approximate that of the districts as a whole.
In 2003, O'Connor was the deciding vote in upholding the constitutionality of affirmative action in public universities; Kennedy dissented.
Both Roberts and Alito worked as Justice Department lawyers during the Reagan administration, which sought to limit affirmative action. Alito has said he saw the value of diversity in the classroom when he taught a college seminar on civil liberties.
In the court's ruling in June on Texas congressional districts, Roberts described the use of race to apportion voters to one district or another as "a sordid business."