FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

WASHINGTON -- The Supreme Court will be returning to familiar terrain this Term when it considers the constitutionality of the federal Partial-Birth Abortion Ban of 2003, and the use of student assignment plans to achieve racial diversity in Seattle, Washington and Louisville, Kentucky.

At the same time, Congress is currently debating whether and how to comply with the Supreme Court’s ruling last June that the Geneva Conventions apply to the war on terror. And, the Bush Administration is increasingly invoking the state secrets privilege in its latest effort to prevent judicial review of its anti-terrorism policies.

It is a critical institutional moment for the new Roberts Court. Neither Congress nor the President should be seeking ways to evade the Court’s historic decision in Hamdi v. Rumsfeld, and the Court itself should not be seeking ways to evade its own recent rulings on abortion and education.

In what has become a ritualistic exercise, each Supreme Court nominee is now routinely questioned by the Senate Judiciary Committee on his or her views regarding stare decisis – the legal principle that courts are generally bound to follow their prior decisions. In their confirmation hearings last year, Chief Justice Roberts and Justice Alito each gave what has also become a ritualistic response. Both agreed that prior decisions should not be overruled merely because newly appointed Justices might have reached a different result had they been on the Court at the time.

That principle will be put to the test this Term. On abortion and education, the Court will be revisiting legal issues that it addressed only a few years ago. In two 5-4 decisions, with the now-retired Justice Sandra Day O’Connor casting the pivotal swing vote, the Court rejected Nebraska’s effort to ban so-called partial-birth abortions, and upheld the use of race as a factor in the admissions process at Michigan Law School. If the Court is faithful to those

decisions this year, it should affirm lower court rulings striking down the federal abortion ban in Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood Federation of America (05-1382). Likewise, in Parents Involved in Community Schools v. Seattle School District No. 1 (05-908) and Meredith v. Jefferson County Board of Education (05-915), it should affirm lower court rulings that racial diversity in public education is a compelling state interest.

One way or another, the outcome of these cases will tell us a great deal about the future direction of the Roberts Court, on these specific issues and on the judicial process more generally. Justice Kennedy is almost certain to play a pivotal role in charting that direction. On a closely divided Court, he cast critical votes last year on cases dealing with partisan redistricting, the exclusionary rule, the death penalty and federalism. There is every reason to assume that his vote will be just as critical this year when the Court takes up abortion and race-conscious student assignment plans. Justice Kennedy was a dissenter in the Nebraska and Michigan cases, putting him on the opposite side from Justice O’Connor. However, he was also a co-author of the stare decisis opinion in Planned Parenthood of Southern Pennsylvania v. Casey, the 1992 case reaffirming Roe. And his institutional role as the Court’s ideological fulcrum has undeniably changed since Justice O’Connor’s retirement.

In another set of cases now working their way through the lower courts, even the possibility of judicial review has been undermined by the Bush Administration’s aggressive assertion of the state secrets privilege in a series of post-9/11 cases involving the National Security Agency’s warrantless surveillance program and the CIA’s program of so-called "extraordinary rendition." It is unlikely that those cases will reach the Court this Term, but they are almost certainly coming. When they arrive, it is critical for the Court once again to reject – as it did in Hamdan, Hamdi and Rasul, the landmark cases challenging indefinite detention and the denial of fair trials – the Administration’s ongoing assault on civil liberties and our system of checks and balances.

Six years ago, in Stenberg v. Carhart, the Court struck down a Nebraska statute that purported to ban a particular abortion method. With Justice O’Connor in the majority, the Court ruled that the statutory ban was so broadly written that it in fact reached other common methods of abortion performed as early as 13 weeks and, for that reason, created an undue burden on women’s reproductive choices. The Court also concluded that the law was unconstitutional because it lacked a health exception. In other words, even if it banned only a single procedure, the law did not permit doctors to perform the prohibited procedure when necessary to preserve a woman’s health.

In the face of that ruling, Congress chose to enact a legally indistinguishable ban in 2003. The federal law was challenged in three separate proceedings (only two of which are now before the Court), and declared unconstitutional in all three on the basis of Stenberg.

The Administration is now asking the Court to distinguish Stenberg based on a congressional finding that the prohibited procedure is never medically necessary and the law therefore does not require a health exception. Saying so, however, does not make it so, and congressional findings are not entitled to deference when they are based on a political agenda rather than actual evidence, as the lower courts found. Nor does the congressional finding cure the breadth of the federal law. Nothing has changed since Stenberg except the composition of the Court. Unless Stenberg is overruled, the federal abortion ban cannot be upheld.

The two education matters on the Court’s docket this year arise from challenges to diversity programs in K-12 public schools in Seattle and Louisville. While the school districts differ in the details of their student assignment plans, school officials in both cities made two critical judgments. First, they determined that there were important educational reasons to maintain a racially diverse student body. Second, they concluded that racial diversity required some consideration of race in student assignments.

Three years ago, with Justice O’Connor writing for a slim five-person majority in Grutter v. Bollinger, the Court held that achieving racial diversity in higher education was a compelling state interest and rejected the argument that race could never be considered during the admissions process.

The Seattle and Louisville cases present the same fundamental questions in the K-12 context and should lead to the same answers. If achieving racial diversity is a compelling state interest at the university level, it is hard to imagine why it is not an equally compelling interest in the lower grades. And, if race-neutral alternatives were sufficient by themselves to end racial isolation, we would not be confronting the problem of resegregated urban school districts across America. The issue of narrow tailoring is likely to be a central focus of the Court’s deliberations. But narrow tailoring should not mean that school districts must abandon any reliance on race to achieve diversity that experience has shown is otherwise unobtainable.

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

WASHINGTON -- The Supreme Court will be returning to familiar terrain this Term when it considers the constitutionality of the federal Partial-Birth Abortion Ban of 2003, and the use of student assignment plans to achieve racial diversity in Seattle, Washington and Louisville, Kentucky.

At the same time, Congress is currently debating whether and how to comply with the Supreme Court’s ruling last June that the Geneva Conventions apply to the war on terror. And, the Bush Administration is increasingly invoking the state secrets privilege in its latest effort to prevent judicial review of its anti-terrorism policies.

It is a critical institutional moment for the new Roberts Court. Neither Congress nor the President should be seeking ways to evade the Court’s historic decision in Hamdi v. Rumsfeld, and the Court itself should not be seeking ways to evade its own recent rulings on abortion and education.

In what has become a ritualistic exercise, each Supreme Court nominee is now routinely questioned by the Senate Judiciary Committee on his or her views regarding stare decisis – the legal principle that courts are generally bound to follow their prior decisions. In their confirmation hearings last year, Chief Justice Roberts and Justice Alito each gave what has also become a ritualistic response. Both agreed that prior decisions should not be overruled merely because newly appointed Justices might have reached a different result had they been on the Court at the time.

That principle will be put to the test this Term. On abortion and education, the Court will be revisiting legal issues that it addressed only a few years ago. In two 5-4 decisions, with the now-retired Justice Sandra Day O’Connor casting the pivotal swing vote, the Court rejected Nebraska’s effort to ban so-called partial-birth abortions, and upheld the use of race as a factor in the admissions process at Michigan Law School. If the Court is faithful to those decisions this year, it should affirm lower court rulings striking down the federal abortion ban in Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood Federation of America (05-1382). Likewise, in Parents Involved in Community Schools v. Seattle School District No. 1 (05-908) and Meredith v. Jefferson County Board of Education (05-915), it should affirm lower court rulings that racial diversity in public education is a compelling state interest.

One way or another, the outcome of these cases will tell us a great deal about the future direction of the Roberts Court, on these specific issues and on the judicial process more generally. Justice Kennedy is almost certain to play a pivotal role in charting that direction. On a closely divided Court, he cast critical votes last year on cases dealing with partisan redistricting, the exclusionary rule, the death penalty and federalism. There is every reason to assume that his vote will be just as critical this year when the Court takes up abortion and race-conscious student assignment plans. Justice Kennedy was a dissenter in the Nebraska and Michigan cases, putting him on the opposite side from Justice O’Connor. However, he was also a co-author of the stare decisis opinion in Planned Parenthood of Southern Pennsylvania v. Casey, the 1992 case reaffirming Roe. And his institutional role as the Court’s ideological fulcrum has undeniably changed since Justice O’Connor’s retirement.

In another set of cases now working their way through the lower courts, even the possibility of judicial review has been undermined by the Bush Administration’s aggressive assertion of the state secrets privilege in a series of post-9/11 cases involving the National Security Agency’s warrantless surveillance program and the CIA’s program of so-called "extraordinary rendition." It is unlikely that those cases will reach the Court this Term, but they are almost certainly coming. When they arrive, it is critical for the Court once again to reject – as it did in Hamdan, Hamdi and Rasul, the landmark cases challenging indefinite detention and the denial of fair trials – the Administration’s ongoing assault on civil liberties and our system of checks and balances.

Six years ago, in Stenberg v. Carhart, the Court struck down a Nebraska statute that purported to ban a particular abortion method. With Justice O’Connor in the majority, the Court ruled that the statutory ban was so broadly written that it in fact reached other common methods of abortion performed as early as 13 weeks and, for that reason, created an undue burden on women’s reproductive choices. The Court also concluded that the law was unconstitutional because it lacked a health exception. In other words, even if it banned only a single procedure, the law did not permit doctors to perform the prohibited procedure when necessary to preserve a woman’s health.

In the face of that ruling, Congress chose to enact a legally indistinguishable ban in 2003. The federal law was challenged in three separate proceedings (only two of which are now before the Court), and declared unconstitutional in all three on the basis of Stenberg.

The Administration is now asking the Court to distinguish Stenberg based on a congressional finding that the prohibited procedure is never medically necessary and the law therefore does not require a health exception. Saying so, however, does not make it so, and congressional findings are not entitled to deference when they are based on a political agenda rather than actual evidence, as the lower courts found. Nor does the congressional finding cure the breadth of the federal law. Nothing has changed since Stenberg except the composition of the Court. Unless Stenberg is overruled, the federal abortion ban cannot be upheld.

The two education matters on the Court’s docket this year arise from challenges to diversity programs in K-12 public schools in Seattle and Louisville. While the school districts differ in the details of their student assignment plans, school officials in both cities made two critical judgments. First, they determined that there were important educational reasons to maintain a racially diverse student body. Second, they concluded that racial diversity required some consideration of race in student assignments.

Three years ago, with Justice O’Connor writing for a slim five-person majority in Grutter v. Bollinger, the Court held that achieving racial diversity in higher education was a compelling state interest and rejected the argument that race could never be considered during the admissions process.

The Seattle and Louisville cases present the same fundamental questions in the K-12 context and should lead to the same answers. If achieving racial diversity is a compelling state interest at the university level, it is hard to imagine why it is not an equally compelling interest in the lower grades. And, if race-neutral alternatives were sufficient by themselves to end racial isolation, we would not be confronting the problem of resegregated urban school districts across America. The issue of narrow tailoring is likely to be a central focus of the Court’s deliberations. But narrow tailoring should not mean that school districts must abandon any reliance on race to achieve diversity that experience has shown is otherwise unobtainable.