Roberts May Face Early Tests as Court Convenes

The Supreme Court opens its term this week with a new chief justice, and facing a series of major cases on the “right to die,” abortion, free speech and the death penalty.

Chief Justice John G. Roberts Jr. will be sworn in Monday morning during a court ceremony and then take the center seat as the justices hear the first round of oral arguments.

His first case might not prove memorable to him or to the law. It concerns whether slaughterhouse workers are entitled to be paid for the time it takes for them to don protective clothing at the start of each work shift.

On Wednesday, however, the court will hear the Bush administration’s challenge to the nation’s only “right to die” law, a case that might give an early clue as to what kind of conservative Roberts is.

Oregon voters have twice approved the Death with Dignity Act, a measure that permits dying people to obtain lethal medication from their doctor. Since 1998, when the law took effect, 208 people have used medication to end their lives. Most of them were dying of cancer.

Shortly after President Bush won the presidency, his attorney general, John Ashcroft, decreed that Oregon doctors who prescribed lethal medication were violating federal drug-control laws. He threatened them with a loss of their license to prescribe drugs.

As a legal matter, the case, now known as Gonzales vs. Oregon, pits the state’s traditional power to regulate the practice of medicine against the federal government’s authority to regulate drugs. It also poses a test of different styles of conservatism. Libertarian and “small government” conservatives would likely side with Oregon because it allows dying people to decide for themselves whether to end their lives. Conservative advocates of federalism have also been inclined to defer to the states, not Washington, to make the law.

In 1997, the late Chief Justice William H. Rehnquist, speaking for the court, said the issue of physician-assisted dying should be decided through the “democratic process,” not by judges.

But social conservatives say it is immoral to end a life, and they have lined up on the side of the Bush administration. Americans United for Life, the U.S. Conference of Catholic Bishops and Sen. Rick Santorum (R-Pa.) are among those who have filed friend-of-the-court briefs that urge the court to nullify the Oregon law.

The case has similarities to the case testing California’s medical marijuana law, a dispute that split the court’s conservatives in June. Justices Clarence Thomas and Sandra Day O’Connor as well as Rehnquist sided with California and the patients who used marijuana to relieve their pain. They said this was an issue for the state and its voters to decide.

But Justices Antonin Scalia and Anthony M. Kennedy joined the majority in saying federal authorities had the power to ban all use of marijuana, a prohibited drug under the federal drug-control laws.

The Oregon case turns on the same federal law, the Controlled Substances Act, but it involves legal drugs, not banned substances.

In late November, the court will revisit the abortion issue. A New Hampshire case does not ask the court to overrule Roe vs. Wade and the right to abortion, but it might make it much harder for doctors to challenge a state’s regulation of abortion.

New Hampshire, like 34 other states, passed a law that requires doctors to notify a parent of a minor girl before performing an abortion. Unlike most such laws, however, this statute did not make an exception for medical emergencies that threaten the health of the young woman.

For that reason, a federal judge and the U.S. Court of Appeals in Boston blocked the law from taking effect. The state’s attorney general, Kelly Ayotte, and Bush administration lawyers urge the court to put the law into effect as written. They say doctors whose patients need emergency abortions may go to a judge and ask for a waiver of the parental notice rule.

Abortion rights advocates say doctors who face medical emergencies should go first to a hospital, not to a courthouse. The court will hear the case of Ayotte vs. Planned Parenthood on Nov. 30.

Two important free-speech cases will be heard in the fall. One concerns the rights of public employees, the other whether colleges may restrict military recruiters on campus.

At one time, the Supreme Court said public employees did not have a free-speech right to challenge their employer. Justice Oliver Wendell Holmes summed up this view in a 1906 case when he wrote that a policeman “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

The court changed direction in 1968 when it ruled that a schoolteacher could not be fired for writing a letter to a newspaper editorial page complaining about how the school board was spending the taxpayers’ money. The justices said public employees had a right to speak out on matters of public concern.

The law remains unclear, however, on whether whistle-blowers have a right to speak out with impunity regarding what they have seen or heard on the job.

On Oct. 12, the court will hear a Los Angeles case to clarify the law. Richard Ceballos was a deputy district attorney for Los Angeles County five years ago when he alleged that another prosecutor had lied about evidence in order to obtain a search warrant. He persisted in raising his complaint with his superiors and alleges he was reprimanded and transferred to the El Monte office because he had spoken out about the problem.

He sued several of his superiors, including then-Dist. Atty. Gil Garcetti. At first, a federal judge dismissed his claim, but the U.S. 9th Circuit Court of Appeals revived it. Judge Stephen Reinhardt wrote that the 1st Amendment should protect government whistle-blowers who disclose wrongdoing.

Bush administration lawyers have intervened in the case of Garcetti vs. Ceballos to urge the court to restrict the free-speech rights of public employees. They argue that while these employees may speak out as citizens, they do not have a right to speak freely on matters involving “the performance of their job duties.”

A ruling on this issue could affect the rights of millions of public employees, including schoolteachers, college professors and police officers as well as nurses, technicians and doctors at publicly funded hospitals.

In December, the court will consider whether colleges and universities that receive federal funds must give military recruiters equal access to their students. Congress, in the Solomon Amendment, threatened colleges with a cutoff of federal funds if they discriminated against military recruiters.

A group of law schools and professors challenged this rule as violating their free-speech rights. They said their schools routinely reject recruiters for employers who refuse to hire gays and lesbians, and the Pentagon has such an anti-gay policy. A U.S. appeals court agreed the law schools have a right not to adopt the military’s anti-gay message, but the court will hear the Pentagon’s appeal. (Rumsfeld vs. FAIR)

The justices will also decide whether people with disabilities can sue a state agency for discrimination if they are denied equal access to a public facility. The Americans With Disabilities Act barred such discrimination, but the court in the past has said states are shielded from being sued. The case arose when a Georgia prisoner in a wheelchair said he was confined in a tiny cell that made it hard for him to even turn his chair. (U.S. vs. Georgia)

Early next year, the court will hear a Tennessee case to decide whether and when new evidence in an old murder case requires federal judges to order a new trial.

The Supreme Court will hear the case of House vs. Bell in January to clarify under what circumstances federal judges can reopen a state case.