WASHINGTON — As the Supreme Court starts its 2005-2006 term it is in a transition from the Rehnquist Era to the John Roberts Era, with no definite date for the arrival of Justice Sandra Day O’Connor’s successor. The court has gone through periods of transition before, when justices die or retire and it takes months for their successors to win confirmation and begin work.
Here are seven questions about the court in a period of uncertainty:
Why did O’Connor make her retirement contingent upon the Senate’s confirmation of her successor?
She most likely wanted to not impede the work of the court, if for some reason her successor could not be promptly confirmed by the Senate.
Under a law passed by Congress in 1869, the court has nine justices. A vacancy creates the possibility of four-to-four ties on decisions. A tie leaves the ruling of the lower court standing.
To avoid this, the justices often choose to re-hear cases in which there is a tie, once the court is back up to its full membership of nine.
Did O’Connor anticipate the possibility that she would have to remain on the court for the next several months as now seems likely?
The timing of her retirement announcement on July 1 suggests she was doing her best to ensure that her successor would be confirmed by the time the court began its new term on Oct. 3.
Although she knew Chief Justice William Rehnquist was ill, she could not have known on July 1 that he would die on Sept. 3, nor could she have known that the nominee that President Bush slated for her vacancy, John Roberts, would instead be switched to the Rehnquist vacancy.
What part will O’Connor take in the work of the court while the Senate is mulling over the president’s nomination of Harriet Miers? And will O’Connor’s votes on cases count?
“She will certainly participate fully, that is why she didn’t resign,” said Duke University law professor Walter Dellinger, who served as acting solicitor general in the Clinton administration and argued nine cases before the high court.
Dellinger also knows Supreme Court tradition since he was a law clerk to Justice Hugo Black for the 1968-1969 term, during which Chief Justice Earl Warren, who’d announced his retirement, stayed on the court because the Senate had not confirmed a successor.
Especially important are any cases in which O’Connor casts a vote, and it ends up as a five-to-four decision and she’s in the majority. If the decision were not yet publicly announced, the justices would likely decide to have the case re-argued, with the new justice participating in the re-argument.
“That’s the precedent from Justice Kennedy,” Dellinger said. After Justice Lewis Powell retired on June 26, 1987, it took until Feb. 18, 1988 before Kennedy could be sworn in as his successor.
Dellinger noted that it often takes months between the time the court hears oral arguments in a case and the announcement of a decision in that case.
For example, the California medicinal marijuana case, Gonzales v. Raich, was argued on Nov. 29, 2004, but the decision was not announced until June 6, 2005.
“One good office pool will be: how many opinions will Justice O’Connor write this term that will be issued?” Dellinger said. “She may get a couple out the door, depending on how the confirmation process proceeds.”
How soon will we know if Chief Justice Roberts is a conservative, along the lines of Rehnquist?
In recent terms, the court has handed down rulings in about 80 or 85 cases, with the chief justice writing majority decisions in about eight. So by next June we may have eight or ten Roberts majority decisions.
But “one term would be much too early to tell,” Dellinger said. It may take a few years to discern his method of judging and his success in forming coalitions with like-minded justices.
Veteran observers of the high court say it is always risky to predict how justices will vote based on what they say during oral arguments of cases. But in the first high-profile case Roberts has heard as chief justice — Wednesday’s oral argument on Oregon’s assisted suicide law — the new chief seemed to be skeptical of Oregon’s arguments.
He seemed to believe that the federal law, the 1970 Controlled Substances Act, would make it impossible for Oregon to allow its doctors to prescribe controlled drugs, such as Seconal, to help terminally ill people kill themselves.
Referring to Oregon’s law and to the idea of states deciding which drugs doctors could prescribe for suicide or, hypothetically, for recreational purposes, Roberts asked the state’s attorney, Robert Atkinson, “What does that do to the effectiveness of regulation under the Controlled Substances Act? If one state can say it’s legal for doctors to prescribe morphine to make people feel better, or to prescribe steroids for bodybuilding, doesn’t that undermine the uniformity of the Federal law and make enforcement impossible?”
Since Roberts was a lawyer in private practice from 1993 until 2003, will he recuse (disqualify) himself from cases that come before the Supreme Court which involved his old law firm or his former clients? And is it entirely up to him to decide when to recuse?
Roberts decided to recuse himself from one of the cases the justices heard on Wednesday, a case called Schaffer v. Weast, involving the Individuals with Disabilities Education Act, and a dispute between the parents of a disabled child and the Montgomery County, Md. public school system.
Roberts’s recusal was most likely triggered by the fact that the lawyer representing the public school system, Gregory Garre, was a former law partner of Roberts at the Washington firm of Hogan & Hartson.
Federal law says a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
It also requires a judge to recuse himself in some specific instances, for example “where he has a personal bias or prejudice concerning a party,” or where he knows that he, his spouse, or child has a financial interest in a party to the proceeding. But the law leaves it to the justice to decide when to not take part in a case.
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