Justice Kennedy Will Provide Key Votes in Upcoming Session

So-called partial birth abortion and race-conscious school assignments will be among the hot-button issues that the Supreme Court tackles in its 2006 term, which begins Oct. 2. Duke University law and political science professors Erwin Chemerinsky and Neil Siegel agree that Associate Justice Anthony Kennedy's vote is likely to be critical on these and other issues.

Two cases scheduled for argument Nov. 8 question the constitutionality of the Partial Birth Abortion Act, a federal statute prohibiting doctors from using a controversial abortion procedure. The U.S. Courts of Appeals for the Eighth and Ninth Circuits, respectively, in considering Gonzales v. Carhart and Gonzales v. Planned Parenthood, declared the law unconstitutional based on the Supreme Court's 2000 decision in Stenberg v. Carhart, which struck down a Nebraska law almost identical to the federal statute.

"In both cases, the federal Courts of Appeal stressed that there was not an exception allowing the procedure where needed to protect the health of the woman and the Supreme Court has said that there must be such an exception," Chemerinsky says. He predicts both cases will be decided 5-4, with Kennedy in the majority.

"Justice Kennedy wrote a vehement, even vitriolic, dissent in Stenberg v. Carhart. If he follows that, he will be the fifth vote -- likely joining Justices Alito, Scalia, Thomas, and Chief Justice Roberts -- and the Court will overrule Stenberg," Chemerinsky says. "On the other hand, based on his decisions from last term, Justice Kennedy seems very self-conscious about his role as the new swing justice. On that basis, perhaps he will give substantial weight to the recent precedent and follow the Court's decision in Stenberg."

Kennedy's vote could also be pivotal in two cases involving race-conscious school assignments, Siegel says. Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1 will be argued in tandem, possibly in December. Both cases involve the question whether school districts may use race as a factor in assigning students to public elementary and secondary schools in order to achieve racial integration. Siegel says these cases raise unique questions for the Court.

"These cases are obviously not like old-fashioned discrimination, where the intent was to subordinate members of a minority racial group. Nor are these cases just like affirmative action in higher education," Siegel says. "Rather, the cases concern assignment within a school district where everyone is guaranteed a spot and where the burdens are distributed across members of all racial groups.

"Moreover, conventional understandings of merit are not at stake in the process because the assignments are made on a non-evaluative basis."

Supporters of both school assignment plans argue that they seek to integrate the schools for the benefit of all students, but opponents allege that they violate the Equal Protection Clause of the Constitution by discriminating against individuals on the basis of race.

"All eyes will be on Justice Kennedy, and each side will try to persuade him to accept their framing of the case," Siegel says. "Opponents of the plans will try to convince him that these programs are just like affirmative action, knowing full well that he has never voted to uphold an affirmative action program. The school districts will argue that their plans are not at all like affirmative action programs." The districts, Siegel says, will characterize their plans as advancing "Brown's promise of integration."