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Court Appearance 

Outside Track

Published November 29, 2006 at 5:00 p.m.

Editor's Note: Peter Freyne is on vacation this week.

When Chief Justice John Roberts spoke at Middlebury College a few weeks ago, the crowd wanting to hear him was so large that the college had to provide overflow space. To me, it's a good sign that so many people are interested in the Supreme Court. After all, it is arguably the most powerful branch of government, with the power to strike down laws passed by Congress, and to tell an overreaching president to dial it back. Eight men and one woman can rule on some of the most controversial issues in America - abortion, affirmative action, the environment - without fear of being voted off the bench.

Yet, the Court actively discourages public interest in what it does. In particular, it limits access to its arguments, releasing only a few audio transcripts during the term. Inquiring minds have to rely on a handful of Supreme Court reporters, such as Nina Totenberg of National Public Radio or Linda Greenhouse of The New York Times, to follow what's happening. That's a big problem for a nation that prides itself on openness in government.

So I hope that Senator Patrick Leahy, in his role as chair of the Senate Judiciary Committee, passes legislation requiring the Supreme Court to televise its proceedings, or at the very least to release same-day audio files of oral arguments. The Judiciary Committee has recommended such legislation before, but it's never passed, in part because some of the justices don't like the idea of turning the Supreme Court into the latest reality-television show. Justice David Souter has been quoted as saying, "The day you see a camera come into our courtroom, it's going to roll over my dead body." Even Justice Antonin Scalia, who does numerous public appearances and fosters a law-nerd-cum-rock-star image, has balked at the idea.

The younger - and very photogenic - Chief Justice Roberts has at least implied he's open to more public access, maybe because he understands that in the hyper-information age, the court is likely to lose legitimacy with the American people if it remains shrouded in mystery. Televised proceedings would hardly be disruptive. And while certainly not as exciting as an episode of "Fear Factor," televised arguments would allow the public to hear the conversations that take place among the justices about issues that so deeply touch our lives. We'd have a clearer understanding of why they rule as they do. Congress can certainly force the justices to acquiesce, so perhaps the next time the chief justice is lobbying Leahy to appropriate funds for the federal courts, the senator could suggest that they make a deal.


Until that happens, a few key cases are worth following. None involve Vermonters directly, as did last year's case of Randall v. Sorrell, in which Attorney General Bill Sorrell and Middlebury attorney Peter Langrock took opposite sides before the high court on whether Vermont's campaign-finance law violated free speech. Nevertheless, these cases could have far-reaching implications for our state.

The first is Gonzales v. Planned Parenthood/Carhart. Argued a few weeks ago, this could be the first in a series of cases undermining the rights of Vermon- ters to decide for themselves what restrictions, if any, we will place on a woman's access to medical abortion procedures. The issue before the court is whether a federal law banning a rare late-term abortion procedure called intact dilatation and evacuation - often referred to as a "partial birth abortion" - is constitutional even though it contains no explicit exception to preserve the mother's health.

In 2000, Justice Sandra Day O'Connor and four other justices struck down a similar law in Nebraska, holding that, without a health exception, the law placed an undue burden on a woman's constitutional right to terminate her pregnancy. In response, Congress held its own hearings, rejected the Supreme Court's findings about medical necessity, and found, despite much controversy, that the procedure was never medically necessary. If the court upholds the law, which is likely given that a far more conservative Samuel Alito replaced moderate O'Connor, it will be the first federal law regulating abortion and the only federal law criminalizing a medical procedure.

No matter where one stands on the question of abortion, this case has troubling implications for the rights of states to decide certain matters themselves. The case has deeply divided conservatives, many of whom, while not favoring the abortion procedure in question, believe that by imposing a one-size-fits-all approach Congress is taking away the rights of states to reflect their own moral values. The decision could reach well beyond the realm of reproductive rights.

The Court has already banned the medical use of marijuana over state objections, and Gonzales v. Planned Parenthood/ Carhart could further extend Congress' reach. For example, Vermont has protected the rights of both gun owners and same-sex couples more than has almost any other state. If Congress can ban certain medical procedures, it could also override state laws allowing for gun ownership or same-sex unions, and Vermonters' hands would be tied. It comes down to whom we trust more to make these decisions - our fellow Vermonters, or Congress. You be the judge.


The second important case for Vermont is Massachusetts v. the Environmental Protection Agency, scheduled for argument on November 29, 2006. Vermont has joined Massachu- setts, California, nine other states, two cities and a handful of environmental groups in suing the EPA for failing to regulate emission standards for automobiles that cause global warming. When deciding to join the lawsuit, Attorney General Sorrell said, "Vermont is doing its part to reduce carbon dioxide emissions. It's a shame that we need the Supreme Court to order the EPA to do the same."

The EPA's position is that the link between greenhouse gas emissions and global warming cannot be unequivocally established. Therefore, until there's more conclusive evidence, it won't regulate. Auto- and oil-dependent states such as Michigan, Texas and Alaska, as well as many industry groups, have intervened in support of the EPA, pitting the nation against itself. This Supreme Court doesn't seem very pro-environment and won't likely second-guess the EPA on matters of science, however politically motivated the scientific interpretation seems to be. So most court watchers have their money on President George W. Bush and the EPA.

If the EPA wins, states such as Vermont will likely consider even more stringent environmental regulations to combat global warning. But the real problem is, even if Vermont wanted to do more, it may not be able to. A 1967 law gives only the federal government the power to regulate automobile emissions. California is the only state that has received a waiver, due to its large population and the unique problems it has with air pollution. Given that the Bush administration doesn't believe global warming is a problem, the EPA could further block efforts of states such as Vermont that do believe the science behind climate change. So, unless the federal government changes its tune on global warming or the Supreme Court decides to intervene, it isn't going to be easy for Vermonters to do much about climate change.


Finally, in early December, the court will hear two cases concerning affirmative action in the public schools. The cases involve school districts in Jefferson County, Kentucky, and Seattle, Washington, both of which, in an effort to maintain racial diversity, use race as one factor in assigning students to schools. Parents of children who've been denied admission to their school of choice, or who are being bussed far from their homes, object, arguing that race should play no role in public schools. These may be the most controversial cases on the court's docket.

In 2003, Justice O'Connor, once again leading a slim, five-justice majority, endorsed the use of affirmative action in education. But most think Justice Alito does not share her view. Thus, with the recent changes on the court, these cases could put an end to any attempt by public schools, whether K-12 or college, to achieve racially integrated classrooms.

At first blush, it may seem that this case would have little to do with Vermont. The Seattle school district, for example, educates more students than does the entire state of Vermont. And Jefferson County legally segregated children by race before Brown v. Board of Education was decided. In contrast, Vermont is among the whitest states in the nation and, while we certainly have had our share of racial problems, we have not had a history of legal racial segregation in the public schools.

But with an increasing number of minorities and foreign-born citizens becoming Vermonters, questions will arise as to what extent, if any, race and ethnicity should be a factor in deciding who goes to what school. This issue certainly lingers in recent discussions about socio-economic integration of the Burlington elementary schools.

Although the school board is not using race as an explicit factor in the discussions, both Barnes and Wheeler elementary schools have significantly higher percentages of minority students than do the other schools in the district. The decision by the Supreme Court will deeply influence how local school districts like Burlington's approach the problem of racial segregation in our education system, and will force each of us to ask ourselves whether race should ever matter in educating our children.

Maybe if these cases were televised, what happens on the high court wouldn't seem so removed from our daily lives. What's particularly frustrating about the Supreme Court is that for most of us - even constitutional law professors - it can be hard to understand why the court rules the way it does. The U.S. Constitution has no hard and fast rules, and there's great controversy over just what the document itself means. But that's also what makes the Supreme Court so relevant. The justices are really more like clergy than they are like jurists. Ultimately, when deciding these hard cases, they're not interpreting the law as much as choosing among competing values. While we may not always agree with what they say, it's in our best interests to pay attention.

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Cheryl Hanna


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