When the gavel bangs to open the Supreme Court’s new term Monday, the justices will enter a pivotal new era in which new faces – including that of Chief Justice John G. Roberts – will help guide court consideration of familiar, high-profile issues.
Cases involving assisted suicide, abortion, the death penalty, religious liberty and states’ rights all appear on the upcoming docket.
It’s a big term – with the potential to be huge – for the new chief justice right out of the gate. By January, Roberts could make clear how his approach will affect some of the most controversial areas of the law. By June, when the term ends, it should be clear whether Roberts’ leadership of the other justices, who have been deeply divided over many of those issues, will achieve more agreement than his former boss and mentor, the late William H. Rehnquist.
The one certainty this term is change.
Roberts is the first new justice in more than 10 years and the first new chief in nearly 20. And at some point this term, President Bush will fill the seat being vacated by Justice Sandra Day O’Connor..
The exact shape and nature of the inevitable shift is difficult to predict, and much will depend on who replaces O’Connor. Unlike Rehnquist, she was a swing vote that the president could replace with a solid conservative.
But Roberts, whose career and Senate confirmation hearing testimony have stressed a restrained, humble approach to judging, also could have a profound effect on the court’s direction. And the potential influence of that approach in some of the high-profile cases could produce surprising – and for some, disappointing – results.
The assisted suicide case, scheduled for argument Wednesday, is perhaps the strongest example. It involves a decade-long experiment in Oregon, where voters in 1994 approved a law that permits doctors to prescribe lethal doses of drugs to kill certain terminally ill patients.
The Bush administration claimed in 2001 that the law conflicts with the federal Controlled Substances Act. Former Attorney General John Ashcroft threatened doctors who participate in the program with the revocation of their licenses, or criminal prosecution.
The case raises cultural issues about the right to die and the nature of end-of-life care, and it evokes troublesome memories of the complicated fight over Terri Schiavo, a brain-dead Florida woman whose family wanted desperately to keep her alive.
But for the court, it is a question of federal versus state authority and the right of individuals to decide personal questions such as these for themselves. Roberts’ approach suggests a clear direction in the case, and one that he spoke publicly about the last time the high court dealt with the issue.
In 1997, the justices turned back a challenge to a Washington state law that prohibited assisted suicide, saying voters in that state had a right to decide the issue for themselves.
Roberts, then a private attorney, said on PBS’ Newshour that he agreed with the ruling, and expanded on what he thought was its chief virtue.
“I think it’s important not to have too narrow a view of protecting personal rights,” Roberts said. “The right that was protected in the assisted-suicide case was the right of the people through their legislatures to articulate their own views on the policies that should apply in those cases of terminating life, and not to have the court interfering in those policy decisions. That’s an important right.”
If Roberts applies the same approach in the Oregon case, he easily could vote to uphold the law – a move that is likely to disappoint social conservatives who oppose assisted suicide altogether. If he leads the justices to a resounding opinion in that direction, it could make a strong early statement about the direction he has in mind for the court: one that stresses deference to democratic will, no matter the public opposition.
To be sure, there are important differences between the Oregon and Washington assisted suicide cases, and Roberts could focus on some of them to reach another conclusion in the Oregon matter. But Roberts’ statement about the Washington law’s importance suggests that’s unlikely.
“The phrasing of it is so atypical, almost original,” said court historian David Garrow. “I think it’s an important indicator of what kind of justice he might be.”
c 2005, Knight Ridder/Tribune Information Services.

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