WASHINGTON – The Supreme Court opens Monday with a bevy of cases relating to abortion, environmental rules and affirmative action. The size of jury awards and patent law are also on the docket for the 2006-2007 year.
The Bush administration's treatment of terrorism suspects, warrantless monitoring of Americans' communications with overseas contacts and efforts to invoke national security claims to stop lawsuits could also reach the court before the term ends in June.
And while cases involving religion may not specifically be argued this term, the personal beliefs of the justices could have an impact on the outcome of others.
Right from the start, hearings at the court are delayed by one day as two justices — Ruth Bader Ginsburg and Stephen Breyer — take time off Monday to observe Yom Kippur, the most solemn day of the Jewish year. The court will convene briefly without them to issue orders and swear in lawyers to the Supreme Court bar.
Even before the court convened, four of the five Roman Catholic justices on the bench found themselves in the pews with President Bush at the annual Red Mass service at the Cathedral of St. Matthew the Apostle.
Celebration of the Red Mass dates to the 13th century and is conducted to ask the Holy Spirit for guidance for those who seek justice. The Mass takes its name from the red vestments, symbolizing the Holy Spirit, worn by the celebrants.
Newly-installed Archbishop Donald W. Wuerl, conducting his first Red Mass in the city since being appointed in May, described how religion has always been a guiding principle in American history.
"Morality and ethical considerations cannot be divorced from their religious antecedents," Wuerl said in his homily. "What we do and how we act, our morals and ethics, follow on what we believe. The religious convictions of a people sustain their moral decisions."
Wuerl said politics, law and faith mingle "because believers are also citizens. Church and state are home for the same people."
He called religious faith a "cornerstone in the American experience."
"May our religious faith, as a foundational part of our national experience, continue to nurture and sustain each branch of this society so that by its very connectedness to the vine, we can blossom and flourish," Wuerl said.
The service has been held in the cathedral since 1953 by the John Carroll Society of Catholic professionals in Washington. It is traditionally held the day before the high court's new term.
Wuerl spoke to an audience that included Bush, Chief Justice John Roberts, Antonin Scalia, Anthony Kennedy and Clarence Thomas as well as Attorney General Alberto Gonzales, Commerce Secretary Carlos M. Gutierrez, Health and Human Services Secretary Michael Leavitt and Housing and Urban Development Secretary Alphonso Jackson.
Justice Samuel Alito, who is the fifth Catholic on the nine-member high court, was not in attendance.
When the court does convene, one case it will face this year is of importance to many religious Americans. The court will decide whether the law known as the Partial Birth Abortion Ban of 2003 is constitutional.
The court is being asked to determine if the law is acceptable even though it does not contain a health exception for the would-be mother. The decision will most likely be divided, and a key justice affecting the outcome will be Justice Anthony Kennedy, in his 19th year on the court, who has taken over the role of swing voter since Sandra Day O'Connor retired last year.
While the court already looked at the health exception in 2000 when it struck down a Nebraska law, the federal law, which was written differently than the state bill, may be treated differently by the court. Kennedy supported the Nebraska law in 2000, writing the minority dissent.
"There are certainly enough votes to flip the issue if Justice Kennedy continues to take the same position," said Georgetown University law professor Randy Barnett.
The court is hearing 38 cases in all this session, of which 17 are business-related. The substantial increase could be the result of Roberts' influence. He used to be the managing partner in a law firm that dealt with many business interests.
Roberts is "comfortable with the issues presented in business cases in ways that Chief Justice William Rehnquist" was not, said Pepperdine University law professor Douglas Kmiec.
Alito, who took O'Connor's place, is considered business-friendly. As an appeals court judge, Alito sided with companies in employment and discrimination cases. But litigants will have to wait and see where he comes down on several issues, such as punitive damage awards.
All three issues are coming before the court in various cases. In one, Philip Morris USA is fighting an $80 million punitive damage award to the widow of a lung cancer victim who smoked two packs of Marlboros a day. An ominous forecast for the cigarette company comes not from Alito, but Scalia, who has said previously that punitive damages are "the province of state governments."
Other cases coming before the court include an environmental case left over from the Clinton administration. Duke Energy Corp. is trying to protect its lower court victory enabling aging, refitted generating units to operate at full throttle without costly pollution-control equipment.
The court also will consider the case of Lily Ledbetter, found by a jury to have been paid substantially less than the men in her department at Goodyear Tire & Rubber Co. A favorable ruling for business would sharply restrict the time that employees have to sue for illegal discrimination in pay.
In two different cases, the court will deal with patent law. Not the sexiest of topics, it still is important, say legal experts, because the perception is growing among some in the business community that patents stifle innovation.
The justices appear to have the feeling that "something is wrong with patent law," said Washington attorney Jonathan S. Franklin. He added that the idea that patents protect inventers is being overshadowed by fears that they are handed out too carelessly and easily.
The justice don't know exactly what the problem is with patent law, and they don't know exactly how to fix it, but they're looking for the right case to do it in," Franklin said.
Patent law fights involve "corporations on both sides. It's very bad for productivity. It's just a most unsatisfactory situation," added Harvard University law professor Charles Fried, the solicitor general in the Reagan administration. Fried blamed Congress for not stepping in and fixing the problem before it reached the court.
Children are at the heart of public school diversity cases out of 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. Roberts and Alito both worked in the Reagan Justice Department, where they 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."
The Associated Press contributed to this report.
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