THE NATION’S NEWSPAPER

Collegiate
Case
Study www.usatodaycollege.com

Suicide ruling reopens debate

By Joan Biskupic
The Supreme Court
.......................................................................................4 The death of Chief Justice William Rehnquist and the retirement of Justice Sandra
Day O'Connor marked 2006 as the first time in 34 years in which the Supreme
Justice pleads with Senate: Court gained two new members in a single term. Scholars, analysts and other
No cameras in high court observers are awaiting signs of how the appointment of conservative Chief Justice
John Roberts and Justice Samuel Alito will impact the outcome of important cases
By Joan Biskupic
pending before the high court. This case study examines the new composition of
.......................................................................................5 the Supreme Court, both in terms of new voting blocs on the Court, as well as in
light of recent cases that may serve as precedents for a new era of judicial action.
Bush appointees signal court’s
new direction
By Joan Biskupic
..................................................................................6-8 High court case tests limits
Term should indicate new
justices’ influence of student speech rights
By Joan Biskupic
.................................................................................9-10

O’Connor era ends at court,

continues in law
By Joan Biskupic
...............................................................................11-12

The Supreme Court

Critical inquiry and future implications
............................................................................................13

USA TODAY Snapshots®

Presidents with most court picks
Presidents with the most
Supreme Court appointments: By H. Darr Beiser, USA TODAY

11
George
Washington 9
Key question: Have efforts to keep order in schools gone too far?
Franklin
Roosevelt 6 By Joan Biskupic
William
Howard 5 5 5 USA TODAY
Taft Andrew Abraham Dwight
Jackson Lincoln Eisenhower
When the Olympic torch passed through Juneau, Alaska, in 2002, high school senior
Joseph Frederick thought it would be fun to get on TV. As the torch relay passed by his
school, Frederick led his friends in unfurling a banner that read, "Bong Hits 4 Jesus."
Source: The Associated Press It was, Frederick said later, an attempt to get attention with a nonsensical message.
By Karl Gelles, USA TODAY

© Copyright 2006, 2007 USA TODAY, a division of Gannett Co., Inc. All rights reser ved.
AS SEEN IN USA TODAY’S NEWS SECTION, MARCH 1, 2007
Court rulings on student expression consider whether it’s ‘disruptive’
Deborah Morse, the principal at
Juneau-Douglas High School, saw
something more. She tore down the
banner and suspended Frederick for 10
days, saying that because "bong" was a
reference to marijuana, the sign violated
the school's anti-drug policy.
Five years later, the spat in Juneau has
become a significant legal test of
students' speech rights — and of how far
school officials can go in limiting such
rights to try to maintain order in schools.
On March 19, when the U.S. Supreme
Cour t hears arguments in Morse v.
Frederick, school officials nationwide
will be watching for signs of whether the
justices will make it more difficult to
enforce a range of campus speech
regulations that have been imposed in
recent years.
Such policies — many inspired by the
slayings of a dozen students and a
teacher by two outcasts at Colorado's
Columbine High School in 1999 — have
banned students from wearing clothing
or posting signs that focus on drugs, guns
or incendiar y topics such as
homosexuality, abortion and religion.
The Juneau case will be the first major
dispute over student speech rights to
come before the high court in nearly two
decades. It requires the justices to revisit
a landmark ruling from 1969, when the
court decided a dispute involving three
Iowa students who wore black armbands
to school to protest the Vietnam War.
They were suspended and went to court,
saying their First Amendment speech
rights had been violated.
The Supreme Cour t ruled for the
teenagers, saying, "It can hardly be
argued that either students or teachers
shed their constitutional rights to
freedom of speech or expression at the
schoolhouse gate."
Since then, that view has been
somewhat diluted by rulings that have
allowed schools to ban "plainly offensive"
Reprinted with permission. All rights reser ved.
speech of a sexual nature, and to have
wide latitude over control of school-
sponsored speech, such as articles in
school newspapers. However, lower
cour ts have not been consistent in
determining what kind of messages are
"plainly offensive" and what types of
student speech can be punished.
The court's ruling in the current case,
like the decisions in the earlier disputes,
would not be likely to affect the rights of
college students. In middle and high
schools, where nearly all of the students
are minors and administrators adopt a
parent-like role, administrators have a
stronger legal hand to maintain discipline
and set rules for student speech.
In a court brief filed in support of
Morse and the Juneau school board,
attorneys for the National School Boards
Association say that as schools grapple
with increased violence and drug use, it's
important for administrators to be able to
regulate slogans dealing with particularly
controversial issues.
"We are counting on this case to give us
clarity," says Peggy Cowan,
superintendent of the Juneau school
district. "It was important (for Morse) to
take the sign down. Leaving it up would
have communicated that it was OK to
promote the use of illegal drugs."
Frederick, who is traveling abroad, says
through his attorney that school limits on
student speech have gotten out of hand.
Now 23, he says that "schools use 'zero
tolerance' policies to cloak their abuse of
authority and disregard for student
rights."
Morse v. Frederick also is drawing
attention from school officials because it
raises another provocative question:
whether a principal can be held
personally liable for infringing on student
speech rights.
Morse is appealing a federal appeals
court's ruling that she is liable for money
damages to Frederick because past
rulings "clearly established" that she was
not entitled to tear down the "Bong Hits"
sign.
Principals should be shielded from
such financial responsibility, Morse's
attorney, Kenneth Starr, argues in court
papers. Starr — known to many
Americans as the independent
prosecutor whose investigation led to
the impeachment of President Clinton —
calls the appeals court's decision "deeply
alarming to school administrators across
the country."
Students score court victories
David Hudson, a lawyer at the First
Amendment Center at Vanderbilt
University in Nashville, says the legal
landscape for student speech has
changed significantly since the armband
case in 1969.
He says some judges have been
particularly influenced by Columbine
and have cited it "explicitly in their
opinions" supporting school officials,
while others have more broadly
interpreted student rights under the
1969 ruling.
In recent years, students who claimed
their speech rights were violated by
school policies have won some court
decisions. Among them:
u In Vermont, middle school student
Zachary Guiles was suspended in 2003
for wearing a T-shir t to school that
derided President Bush as the "Chicken-
Hawk-In-Chief." Guiles, now a junior at
the Interlochen arts boarding school in
Michigan, says he wore the shirt to
school because he wanted his classmates
to question the Iraq war.
After he was suspended, Guiles — with
help from the Vermont chapter of the
American Civil Liberties Union — took
the school system to court. A trial court
agreed with school officials, saying the T-
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AS SEEN IN USA TODAY’S NEWS SECTION, MARCH 1, 2007

Supreme Court decisions student candidate at a school assembly.

defining scope of rights
Key Supreme Court rulings on student
speech in public schools:
u Tinker v. Des Moines Independent
Community School District , 1969 —
Students protesting the Vietnam War
had a First Amendment right to wear
black armbands to school. The court
noted that the action did not cause a
disturbance.
u Bethel School District v. Fraser,
1986 — A student had no First
Amendment right to give a sexually
suggestive nominating speech for a
Distinguishing the case from the
"political" message in Tinker, the
justices said the "sexual innuendo" of
the speech was "plainly offensive" and
noted that it disrupted the assembly.
u Hazelwood School District v.
Kuhlmeier, 1988 — High school students
did not have a First Amendment right to
publish stories on divorce and
pregnancy in a school newspaper over
the principal's objection. The court said
that the newspaper was par t of a
journalism class, and that schools did
not have to promote such speech
through the use of the school's name
and funding for the publication. The Des Moines Register (Gannett)
Wore anti-war armband: Mary Beth Tinker, 13,
with mother Lorena in 1966.

shirt — which portrayed Bush as a chicken with a martini in
one wing and a cocaine straw in the other — was "plainly
offensive" under the Supreme Court's standards.
Guiles took the case to an appeals court, which said that
"without question," the shirt "uses harsh rhetoric and imagery
to express disagreement with the president's policies and to
impugn his character." However, the appeals court said,
"because Guiles' T-shir t did not cause any disruption,
censorship was unwarranted."
Newsom says. "But if you can't stand up for the Constitution,
what can you stand up for?"
When the U.S. Court of Appeals for the 9th Circuit ruled in
favor of Frederick last year in the Juneau case, it cited the
Newsom decision, among others. It said that "our sister circuits
have similarly held that student speech that is neither plainly
offensive nor school-sponsored can be prohibited only where
the school district demonstrated a risk of substantial
disruption."

Guiles says that when he wore the shirt, "there wasn't much
of a backlash at the school. The kids weren't really pro-Bush as
much as they were apathetic."
u In 2002, Alan Newsom, a 12-year-old middle school
student in Albemarle County, Va., was reprimanded by a vice
principal after wearing a National Rifle Association T-shirt that
depicted three silhouettes of men with firearms. Newsom had
attended an NRA camp to improve his shooting skills, says his
father, Fred Newsom.
Frederick says the words on his "Bong Hits" sign were merely
nonsense, meant to attract TV cameras. In siding with him, the
appeals court said that even if the message was pro-drugs,
officials should not have censored such "non-disruptive"
speech.
A complicating factor in the case — one that has made judges
sympathetic to Frederick's case to this point — is that the
incident occurred across the street from Juneau-Douglas High
School, rather than on its grounds.

After being confronted by the vice principal, Alan turned the
shirt inside out. Later, with the help of NRA lawyers, Newsom
and his family successfully sued to change the school's dress
code, which had prohibited "messages on clothing, jewelry and
personal belongings that relate to … weapons."
Newsom claimed the policy was discriminatory and violated
his First Amendment rights. The case was dismissed by a trial
court, but a U.S. appeals court sided with Newsom, saying the
policy was too vaguely worded and could include clothing with
slogans that were not disruptive in schools.
Going to court "was a difficult thing for the family," Fred
School officials say that shouldn't matter because the torch
parade, a prelude to the Winter Olympics in Salt Lake City, was
co-sponsored by the school. They note that the school's pep
band played as the torch passed, its cheerleaders were in
uniform to cheer the parade, and teachers supervised the
event.
Morse says in court papers that if she had not taken down
the banner, it would have amounted to the school district
approving of its message. That, she says, would have been
"inconsistent with the district's responsibility to teach students
the boundaries of socially appropriate behavior."

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AS SEEN IN USA TODAY’S NEWS SECTION, MARCH 1, 2007

Questions of defiance
Frederick says his actions were about free speech. "I was just
trying to assert my right," he says through his attorney, Douglas
Mertz. Mertz says that in an earlier incident at the school, an
assistant principal threatened to suspend Frederick because he
did not stand during the Pledge of Allegiance.
Superintendent Cowan says the school has no record of such
an incident. Starr's brief on behalf of the school system says
that a school official had observed that Frederick had "a history
of defiant behavior."
In his court filing, Mertz tells the justices, "There is no dispute
that schools have an important message to deliver regarding
the perils of drug abuse. But the First Amendment recognizes a
critical distinction between delivering that message to students
and imposing an enforced orthodoxy that tramples on free
speech."
Mertz says that in displaying the sign, Frederick was not
trying to promote illegal behavior. The attorney also notes that
in Alaska and elsewhere, marijuana laws have been a subject of
political debate.
Starr counters that the appeals court that ruled in Frederick's
favor substituted "its own unforgivingly libertarian world view"
for school officials' efforts to "encourage a drug-free student
lifestyle." Starr says Frederick's message was far beyond what
the Supreme Court sought to protect in the 1969 ruling.
Cowan says the district encourages students to speak out on
controversial issues. "We do not restrict serious speech,"
Cowan says. She called Frederick's sign "nonsensical promotion
of drugs," rather than part of a serious discussion or debate.
"Up to this point, we thought that a principal enforcing an
anti-drug policy was safe to do so," she says. "Now school
administrators are walking on eggshells."

AS SEEN IN USA TODAY’S NEWS SECTION, JANUARY 18, 2006

Suicide ruling reopens debate

Ore. law upheld by high court
By Joan Biskupic
USA TODAY
WASHINGTON — The Supreme Court
on Tuesday rejected the Bush
administration's attempt to block the
only state law that allows doctors to
prescribe drugs to help the terminally ill
end their lives.
The 6-3 decision that upheld Oregon's
assisted-suicide law opens the door to
similar laws elsewhere at a time when
evolving demographics — baby boomers
are entering their 60s — are pointing
toward a spike in the elderly population.
That is fueling debates over how patients
end their lives.
Lawmakers in California and Vermont
are considering proposals that would
allow assisted suicide; 44 states either
have specific bans on assisted suicide or
consider it akin to homicide.
Since 1997, when Oregon's Death With
Dignity Act took effect, more than 200
patients have used the law to obtain
lethal doses of drugs to end their lives.
The emotional debate over the law often
has focused on personal liberty and
moral choices. But at the court, it was a
question of states' rights vs. federal
power: whether then-U.S. attorney
general John Ashcroft exceeded his
authority in 2001, when he declared that
assisted suicide had no "legitimate
medical purpose" and threatened to
punish doctors who gave out lethal
prescriptions.
Justice Anthony Kennedy, writing for
the court's majority, said Ashcroft lacked
the legal and medical authority to
inter vene. Kennedy, citing states'
traditional power to regulate medicine,
noted Ashcroft did not consult anyone in
Oregon. Kennedy said the
administration's defense of Ashcroft's
directive amounted to support for a
Contributing: David Jackson
"radical shift of authority from the states
to the federal government."
The Bush administration had argued
that Ashcroft's action was supported by
the federal Controlled Substances Act
and that he had the authority to ensure
that prescriptions are used for "a
legitimate medical purpose." Kennedy
said the law does not allow the attorney
general to essentially declare the Oregon
law invalid.
Dissenting were Chief Justice John
Roberts and Justices Antonin Scalia and
Clarence Thomas. They said Ashcroft
validly used his authority under the law.
White House press secretary Scott
McClellan said "we are disappointed with
the decision" and said Bush "remains
fully committed to building a culture of
life." McClellan said the Justice
Department was weighing whether the
issue could be revisited.

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AS SEEN IN USA TODAY’S NEWS SECTION, FEBRUARY 15, 2007
Justice pleads with Senate: No cameras in high court
By Joan Biskupic
USA TODAY
WASHINGTON — Supreme Court Justice Anthony Kennedy
pleaded with senators Wednesday not to try to force the high
court to televise its oral arguments, saying it could undermine
substantive legal discussion and lead the justices to speak in
"sound bites."
Kennedy's comments, which echoed previous statements by
some of the nine justices but had a more impassioned tone,
came during a Senate Judiciary Committee session in which he
emphasized a need for higher salaries for federal judges.
Sen. Arlen Specter of Pennsylvania, the panel's senior
Republican, sought instead to highlight federal judges'
resistance to cameras in their courtrooms.
Specter and a few other Republicans and Democrats,
including committee Chairman Patrick Leahy, D-Vt., have
pushed legislation to allow federal court proceedings to be
televised. The bills have never gotten very far in Congress.
The Supreme Court has never permitted cameras of any kind
at its sessions. Lower federal courts bar cameras at all trials, but
cameras are allowed in some appellate court hearings at the
judges' discretion. All 50 states allow some TV and still cameras
in state courts; rules vary based on the type of proceeding and
parties involved.
Specter, a lawyer who has argued before the high court,
noted that its courtroom is relatively small with few seats for
the public. He said he believes televising court sessions would
help the public better understand the law and how the court
works.
Kennedy said the justices find the hour-long oral arguments a
constructive forum for getting answers from lawyers and for
telegraphing their own views to one another. He noted that the
justices do not discuss cases with one another before oral
arguments.
Reprinted with permission. All rights reser ved.
If TV cameras were in the room, Kennedy said, he would
begin to worry about his colleagues speaking in "sound bites,"
rather than probing legal issues sufficiently. He said a "majority"
of the justices think television would "change our collegial
dynamic."
"Please, senator," Kennedy implored Specter at one point,
asking him not to encourage television cameras at Supreme
Court proceedings.
Sen. John Cornyn, R-Texas, a former Texas Supreme Court
justice, told Kennedy he sympathized with the concern that
jurists would try "to outdo each other" for the cameras. Cornyn
said that did not happen in Texas, which allows some court
proceedings to be televised. Cornyn added that he agreed with
Specter about the educational value of televising court
proceedings.
Kennedy did not say which justices were against televising
arguments.
Chief Justice John Roberts suggested during his 2005 Senate
confirmation hearings that he might be open to cameras, but
since then he has played down the value of televising hearings.
Justice David Souter said in 1996 that cameras would roll in the
Supreme Court "over my dead body."
The Judicial Conference of the United States, which sets
policy for the lower federal trial and appellate court, has long
prohibited cameras in trial courts based on the view that
cameras could intimidate witnesses.
The conference has allowed appellate judges — who do their
work without witnesses — to decide in specific cases whether
to allow cameras.
The Supreme Court, which sets its own rules, has always
barred cameras.
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AS SEEN IN USA TODAY’S NEWS SECTION, DECEMBER 20, 2006

Bush appointees signal court's new direction

Chief Justice Roberts and Justice Alito appear ready to steer bench to
the right, affirmative action, abortion issues could see big impact
By Joan Biskupic
USA TODAY

WASHINGTON — They are President

Bush's appointees to the Supreme Court,
the products of the administration's
effor ts to make the cour t more
conservative.

And although most of the major

decisions in their first full term together
News won't be announced for
months, Chief Justice
Analysis John Rober ts and
Justice Samuel Alito
have signaled a readiness to move the
court to the right.
In recent cases involving abortion,
global warming and school integration,
Roberts and Alito have been aggressive
and sometimes feisty proponents of
conservative views and particularly
sympathetic to arguments by the Bush
administration.
Their tactics have added flair to the
cour t's public sessions and have
contrasted sharply with the tentative
approach that moderate Justices Sandra
Day O'Connor and Anthony Kennedy
often took in disputes over abortion,
affirmative action and other key issues.
On an ideologically divided, nine-
member cour t, the now-retired
O'Connor was an especially key player
because she generally was conservative
but sometimes voted with the bench's
four more-liberal justices: John Paul
Stevens, David Souter, Ruth Bader
Ginsburg and Stephen Breyer.
O'Connor voted with the liberals, for
example, in favor of affirmative action in
college admissions. O'Connor and
Supreme Court Justice Samuel Alito
Kennedy joined the liberals in backing
abortion rights.
Now, Alito has replaced O'Connor, and
he has joined the new chief justice —
who replaced another conservative, the
late William Rehnquist — in beginning to
alter the court's course.
During last month's dispute over the
Bush administration's decision against
regulating carbon dioxide emissions and
other so-called greenhouse gases,
Roberts and Alito were skeptical about
whether the USA is a significant
contributor to global warming.
Rober ts, echoing a sentiment
expressed by an administration lawyer,
suggested that federal regulation of
emissions from cars and trucks might
produce only a "marginal benefit" to the
environment. Massachusetts and several
other states argued that continued
inaction by the U.S. government on car
and truck emissions could lead to greater
Photos by Tim Dillon, USA TODAY
Supreme Court Chief Justice John Roberts
harm to the environment around the
world.
The abortion issue
Also last month, Roberts suggested by
his questions that he was leaning toward
voting to uphold a congressional ban on a
midterm abortion procedure that critics
call "partial birth."
While Kennedy expressed concern
about how such a ban would affect
women's health, Rober ts — again
reflecting a position taken by the Bush
administration — challenged abortion
rights lawyers who argued that the
procedure known medically as "dilation
and extraction" was safer than other
methods of abortion. (Alito asked no
questions during that session.)
And during a dispute this month over
school integration programs that allow
districts to consider a student's race in
making school assignments, Roberts

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AS SEEN IN USA TODAY’S NEWS SECTION, DECEMBER 20, 2006
The Roberts file
u Age: 51; born Jan. 27, 1955, in Buffalo.
u Family: Wife, Jane; two children.
u Education: Harvard College, summa cum laude,
1976; Harvard Law School, magna cum laude, 1979.
u Career: Law clerk to the Hon. Henry Friendly, U.S.
Court of Appeals for the 2nd Circuit, 1979-80; law
clerk, Justice William Rehnquist, U.S. Supreme Court,
1980-81; special assistant to the attorney general, U.S.
Department of Justice, 1981-82; associate counsel to
the president, White House Counsel's Office, 1982-86;
private practice, Washington, D.C., 1986-89, 1993-
2003; principal deputy solicitor general, U.S.
Department of Justice, 1989-93; U.S. Court of Appeals
for District of Columbia Circuit, 2003-05; U.S. chief jus-
tice, Supreme Court, Sept. 29, 2005-present.
compared such diversity programs in Louisville and Seattle to
school segregation policies struck down by the high court a
half-century ago in Brown v. Board of Education.
Alito, suggesting that he would support arguments brought
by parents of white students who were denied their choice of
schools, also bristled at the notion of using race as a factor in
efforts to diversify school systems.
He indicated that even if the intent of such programs is
admirable, the programs' treatment of students is reminiscent
of the "separate but equal" doctrine that the court rejected in
Brown.
Legal and political conservatives have been pleased with the
new justices' approach.
At the annual meeting of the conservative Federalist Society
last month, outgoing Senate Majority Whip Mitch McConnell,
R-Ky., praised Roberts' and Alito's confirmation to the high
court as "signature achievements" of the Congress that
Republicans controlled for more than a decade.
After oral arguments in the school integration cases on Dec.
4, Ward Connerly, a former University of California regent who
has fought race-based policies nationwide, said he was
heartened by comments from Roberts and Alito and believes
the court is headed toward rejecting the Seattle and Louisville
programs.
Reprinted with permission. All rights reser ved.
The Alito file
u Age: 56; born April 1, 1950, in Trenton, N.J.
u Family: Wife, Martha-Ann Bomgardner; two chil-
dren.
u Education: Bachelor's degree, Princeton University,
1972; law degree, Yale Law School, 1975.
u Career: Assistant to the U.S. solicitor general, arguing
12 cases for the federal government before the U.S.
Supreme Court, 1981-85; deputy assistant U.S. attor-
ney general, 1985-87; U.S. attorney for the district of
New Jersey, 1987-90; judge, U.S. Court of Appeals for
the 3rd Circuit, based in Philadelphia, 1990-2006; U.S.
Supreme Court justice, Jan. 31, 2006-present.
Source: U.S. Supreme Court
"When people go through the Senate (confirmation) process"
for judicial nominees, "you think that you might be getting
some insight into their intelligence and demeanor," Connerly
said last week. "But you never really know because the hearing
process is fraught with theater."
Connerly said he interpreted the session on school
integration as a sign that the court was on the verge of a new
era -- one in which the court would not support programs that
consider race to promote diversity.
"It's something whose time has come," Connerly said.
For those who are fighting policies set forth by the Bush
administration, the early courtroom performances by Roberts
and Alito have been disheartening.
After the arguments in the school integration cases,
Theodore Shaw of the NAACP Legal Defense Fund said he
walked out of the Supreme Court feeling lower than he has in
years.
"If the ruling is in keeping with the way the argument went, it
would be a tragedy," Shaw said, adding that school districts
across the nation could have their hands tied in trying to
promote racial diversity.
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AS SEEN IN USA TODAY’S NEWS SECTION, DECEMBER 20, 2006
Turning-point potential
Roberts, 51, and Alito, 56, shared the
bench for five months during the 2005-
06 term, which ended in June. The term
didn't reveal much about how the court
might change under Roberts' leadership.
This term is likely to provide some
guidance on the issue. The school
integration cases heard this month had
the feel of a potentially distinctive
turning point for the court in dealing
with government programs that have
been created as remedies to past
discrimination.
After Rober ts declared that the
constitutional guarantee of equality is
intended "to ensure that people are
treated as individuals rather than based
on the color of their skin," Breyer
countered that past rulings by the court
had allowed race to be used as a factor in
programs to address the lasting effects of
segregation.
The liberal justice said "thousands of
school districts" could have to change
their enrollment policies if the court sets
a new path by rejecting such initiatives.
Upcoming cases are likely to further
define the conservatism of Roberts and
Alito, both of whom were lawyers in the
Reagan administration who went on to
become U.S. appeals court judges. One
dispute revolves around whether
Reprinted with permission. All rights reser ved.
Photos by H. Darr Beiser, USA TODAY
O ’ C o n n o r : Former justice voted with
liberals on some issues.
taxpayers can challenge Bush
administration initiatives that encourage
faith-based charities to compete for
federal grants for social programs.
Outside the courtroom
Beyond the court, Roberts and Alito
have been revealing more of themselves
as well.
In a speech before the Federalist
Society in November, Alito saluted
President Reagan's efforts to curtail
judicial involvement in solving societal
problems and exhibited self-deprecating
humor as he recalled his contentious
confirmation hearings before the Senate
last January.
Alito noted that the Senate Hart Office
Building, where his hearings were held, is
near the Supreme Court and that he
often walks by it. But now, Alito quipped,
"I cross to the other side of the street. I
quicken my step until I'm well past the
building."
Alito was confirmed to the Supreme
Cour t in a 58- 42 Senate vote that
reflected Democrats' anxiety over
whether replacing O'Connor with Alito
would lead the court to take a harsher
view of abortion rights, affirmative
action and other Democratic priorities.
Roberts, who has been on the court
since fall 2005, has used speeches at
colleges to show the humor that has
served him well as a litigator and as a
judge.
In cour t, Rober ts' humor has a
distinctive bite. During arguments in a
recent patent case, he derided a lower-
cour t rule for assessing when an
invention should not be patented
because it would have been "obvious" at
the time of development.
"Who do you get to be an expert to tell
you something's not obvious?" he asked.
"I mean, the least insightful person you
can find?"
As usually happens when the chief
justice makes a joke, the spectators
laughed.
Page 8
AS SEEN IN USA TODAY’S NEWS SECTION, SEPTEMBER 29, 2006
Term should indicate new justices’ influence
Environment, abortion among
high court issues
By Joan Biskupic
USA TODAY
WASHINGTON — The Supreme Court will begin its annual
term Monday with a schedule that includes cases on abortion
rights, school integration and global warming, topics that will
test the impact of the court's two new conservative members.
Such disputes, and a slate of business cases, could offer
significant clues on how Chief Justice John Roberts and Justice
Samuel Alito will influence the law. Both have roots in Ronald
Reagan's administration and were touted by President Bush as
reliable conservatives.
Roberts replaced another conservative, the late William
Rehnquist. Alito succeeded the retired Sandra Day O'Connor, a
moderate justice who was at the court's ideological center. As
her views evolved over her quarter-century tenure, O'Connor
became the key vote on a divided, nine-member court. By
voting with the court's four liberals, she helped to ensure
abortion rights and the use of affirmative action in college
admissions.
That's why the new cases could be poignant signs of how the
court has changed with Alito on the bench instead of O'Connor.
Alito's record as a lower court judge suggests he would be less
open to abortion and affirmative action than she was.
"The outcome of these new cases will tell us a great deal
about the future direction of the Roberts court, on specific
issues and more generally on the court's respect for past
rulings," American Civil Liberties Union legal director Steven
Shapiro says.
Washington lawyer Helgi Walker, a former law clerk to
conservative Justice Clarence Thomas, says that although "we
could see watershed decisions" this term, it's also possible "the
cases could be decided on incremental grounds" that don't
dramatically change the law.
Six years ago, O'Connor joined the court's liberals in a 5-4
decision that struck down a state ban on a procedure abortion
foes call "partial birth" abortion. The court cited the law's lack
of an exception for when a physician believed the procedure to
be best for a woman's health.
The justices will consider a federal ban on the "partial birth"
For more educational resources,
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permission. All rights reser ved.
By Tim Dillon, USA TODAY
Supreme Court: From left, Justices Anthony Kennedy, Stephen Breyer,
John Paul Stevens, Clarence Thomas, Chief Justice John Roberts, Ruth
Bader Ginsburg, Antonin Scalia, Samuel Alito and David Souter.
procedure, which Congress passed in 2003 while asserting that
the method is never necessary to preserve a woman's health.
In urging the court to uphold the ban, U.S. Solicitor General
Paul Clement says the dispute is a crucial test of Congress'
power to make findings and set policy. On the other side,
lawyer Eve Gartner of Planned Parenthood says the ban could
affect most abortions in the second trimester — roughly 12-20
weeks of gestation, before the fetus can survive outside of the
womb.
According to the Guttmacher Institute, which compiles
nationwide abortion data used by both sides of the debate,
about 1.3 million abortions are done in the USA each year: 89%
in the first trimester, 10% in the second and 1% in the third.
Disputes over abortion rights have been a staple of the high
court's docket since the Roe v. Wade decision in 1973, when
the court first declared that there is a constitutional right to
end a pregnancy. The ruling transformed national politics and
generated a stream of cases over government limits on the
abortion procedure.
Through the years, as the court became more conservative,
the justices have allowed regulation of abortion but have
affirmed the core right to end a pregnancy. The current case
does not challenge the basic right to abortion. Rather, it tests
whether the court, for the first time, will allow a particular
method of abortion to be outlawed.
The banned procedure, in which a physician partially delivers
the fetus before collapsing its skull, covers medical methods
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AS SEEN IN USA TODAY’S NEWS SECTION, SEPTEMBER 29, 2006
known as "dilation and extraction" and intact "dilation and
evacuation."
Schools' racial makeup
A pair of cases that will come before the court focus on the
divisive debate over racial preferences and school
desegregation.
In Louisville, the Jefferson County School Board makes sure
the enrollment of each elementary and secondary school is at
least 15% African-American, but no more than 50%. In Seattle, a
student assignment plan on hold because of the litigation seeks
to achieve a racial balance in high schools. When a school has
too many applicants, officials use "tiebreakers" to fill openings.
One of the tiebreakers considers the applicant's race.
Parents of children who did not get their first choice of
schools sued, citing the Constitution's guarantee of equality.
School officials say they have a compelling interest in racially
diverse schools and in not having campuses mirror the
separation of whites and blacks found in housing patterns.
In 2003, O'Connor's vote in a University of Michigan case
ensured colleges could use applicants' race for campus
diversity.
Smoking verdict on docket
The justices also will take up several key business cases,
including those that test limits on punitive damages and
pollution regulation.
Jesse Williams, who smoked two packs of Marlboros a day for
45 years, died of lung cancer in 1997. His widow sued Philip
Morris, which makes Marlboros. She won a jury award of $79.5
million in punitive damages, nearly 100 times the damages set
for her loss.
Philip Morris argues that the award was unconstitutionally
excessive and that the jury was improperly allowed to consider
harm to other Oregon smokers.
The justices also will hear their first case focused on global
warming, in an appeal from a dozen states and several cities
that want the federal government to regulate gases emitted
from tailpipes of new cars and trucks. The question is whether
the Clean Air Act gives the Environmental Protection Agency
the power to regulate "greenhouse gases," which many
scientists blame for global warming.
The EPA says it doesn't have authority to regulate such
emissions. Massachusetts Attorney General Tom Reilly
countered recently, "The federal government is shirking its
responsibility to apply the law."
Reprinted with permission. All rights reser ved.
Key cases on court’s docket
Key cases to be considered by the Supreme Court during its
2006-07 term, and the legal questions they pose:
u Gonzales v. Carhart; Gonzales v. Planned Parenthood —
Whether a federal ban on a procedure called "partial birth"
abortion violates a woman's constitutional right to end a
pregnancy because the ban lacks an exception for cases in which
a physician believes the procedure is the best option to preserve
a woman's health.
u Parents Involved in Community Schools v. Seattle School
District No. 1; Meredith v. Jefferson County Board of Education
— Whether a public school district's consideration of a student's
race in school assignments as part of an effort to achieve racial
diversity in schools violates the constitutional guarantee of
equality.
u Philip Morris USA v. Williams — Whether a judge reviewing
a jury's punitive-damages award may find that a company's
conduct was reprehensible enough to override the usual
requirement that such damages be reasonably related to the
actual harm caused. The case also tests whether a jury may
punish a company for the effects of its misconduct on people
who were not parties to the case.
u Massachusetts v. Environmental Protection Agency —
Whether the EPA has the authority to regulate carbon dioxide
and other pollution from tailpipe emissions linked to global
warming, and whether the agency may decline to issue emission
standards for vehicles.
u Ledbetter v. Goodyear Tire & Rubber Co. — Whether a
person alleging illegal pay discrimination may sue her employer
over a salary decision after a 180-day period for filing such
complaints has passed.
u Carey v. Musladin — Whether an appeals court erred in
throwing out a jury's murder conviction on the grounds that
three family members of the victim were in court wearing
buttons depicting the deceased.
u Cunningham v. California — Whether California's
sentencing law, which permits judges to boost sentences based
on their determination of facts (rather than a jury's assessment),
violates defendants' 6th Amendment right to a jury trial and
recent Supreme Court rulings limiting judges' discretion.
u Whorton v. Bockting — Whether a 2004 Supreme Court
decision barring the introduction at trial of certain out-of-court
statements applies retroactively to thousands of criminal cases
that were pending at the time.
Source: U.S. Supreme Court. Reported by Joan Biskupic, USA TODAY
Page 10
AS SEEN IN USA TODAY’S NEWS SECTION, JANUARY 30, 2006
O'Connor era ends at court, continues in law
History-making
tenure marked by
shifts and surprises
By Joan Biskupic
USA TODAY
As Sandra Day O'Connor was being
treated for breast cancer and dealing
with several difficult cases during the
Supreme Court's 1988-89 term, she
wrote to the other justices: "The
unexpected has become the order of the
day."
News Analysis
From her historic appointment in 1981
to her surprising — and in the end, long
— good-bye from the bench, O'Connor
created a legacy marked by the
unexpected. She broke the cour t's
gender barrier, then became a shrewd
player among the brethren. She survived
cancer and was unusually candid about
the lessons it offered. And during the
1990s, she became the voice of the law
in so many areas that the court under
Chief Justice William Rehnquist could
have been dubbed the O'Connor Court.
With Judge Samuel Alito heading
toward Senate approval this week to
replace the retiring O'Connor and no
court sessions scheduled until Feb. 21, it
is likely that O'Connor has seen her last
day on the bench. Her record as an
influential, centrist justice — particularly
her support of abortion rights — has
shadowed the Senate hearings for the
conservative Alito. Critics of Alito, such as
Sen. Patrick Leahy, D-Vt., have cited
O'Connor's record in claiming Alito would
tip the divided, nine-member court too
far to the right, ending the ideological
balance O'Connor wrought.
For more educational resources,
Reprinted with
However, O'Connor's record also has
been invoked by Alito supporters such as
Senate Judiciary Committee Chairman
Arlen Specter, R-Pa., who say that her
tenure shows the difficulty of predicting
how Supreme Court appointees will vote
once they're on the court.
Initially critical of abortion rights,
O'Connor became a key vote to uphold
Roe v. Wade, the 1973 ruling that made
abortion legal nationwide. After helping
to craft limits on appeals by death row
inmates, she became a critical vote to
allow last-ditch appeals, particularly
when there were questions about the
competency of a defendant's lawyer.
During her quarter-century on the
bench, O'Connor became increasingly
open to government's use of affirmative
action and racial preferences. In 2003,
she cast the decisive vote to uphold some
racial preferences in college admissions.
Beyond being the court's tie-breaking
vote on a range of issues, O'Connor wrote
many of the rules that influence how the
Supreme Court and lower courts resolve
cases. She wrote the test the court uses
to decide the constitutionality of
restrictions on abortion: whether the
restriction poses an "undue burden" on a
woman who seeks to end a pregnancy.
O'Connor also devised the standard for
determining whether a government-
sponsored Nativity scene or other
religious display is constitutional. And
she crafted guidelines for courts that
review how governments use affirmative
action and similar policies.
O'Connor entered the national stage
July 7, 1981, when President Reagan —
fulfilling a campaign promise —
nominated her to be the first female
justice. She was on an intermediate state
court then, rather than a top state or
federal bench, and appeared to lack
national connections, but she had two
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permission. All rights reser ved.
By H. Darr Beiser, USA TODAY
S a n d r a D a y O ’ C o n n o r : Her opinions set
today’s standards.
key allies: U.S. Sen. Barry Goldwater, R-
Ariz., for whom she had first campaigned
in 1958, and Chief Justice Warren Burger,
whom she had met on vacation in 1979.
The Senate confirmed her 99-0. Once
on the court, O'Connor became a forceful
presence behind the scenes. As she had
in Arizona as the first woman to be
majority leader of a state Senate, she
proved adept at counting votes within
the court's marble chambers.
O'Connor also revealed the more
personal side of the cour t. After
undergoing a mastectomy to survive
breast cancer, she went public with her
experience to try to help other women.
She recalled the ordeal of trying to sort
through possible treatments and the
frustration of her exhaustion. (She never
missed a day of oral arguments,
returning to the court just 10 days after
surgery in 1988.)
"Having this disease made me more
aware than ever before of the transitory
nature of life here on Earth, of my own
life," she said in a speech to the National
Coalition for Cancer Survivorship in 1994.
"It made me value each and every day of
life more than ever before."
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AS SEEN IN USA TODAY’S NEWS SECTION, JANUARY 30, 2006
It was a different medical situation that led O'Connor to
surprise her colleagues July 1, when she announced her
retirement. She seemed to be at the height of her power,
having in recent years determined the outcome of disputes
involving abortion and the death penalty. At legal conferences
around the world, she had become the face of the American
judiciary.
But O'Connor's husband, John, was ill, and she said she
wanted to spend more time with him. Specter noted that John
O'Connor was suffering from Alzheimer's disease.
On July 19, President Bush nominated John Roberts to
succeed O'Connor. On Sept. 3, Rehnquist died of thyroid cancer,
prompting Bush to make Roberts the nominee for chief justice.
It became clear that O'Connor, who had said she would remain
on the court until a successor was confirmed, would be back
on the bench for the start of the 2005-06 term in October.
On Oct. 3, Bush nominated White House counsel Harriet
Miers to succeed O'Connor. Miers withdrew three weeks later
amid criticism from within Bush's own Republican Party over
whether she was conservative enough. On Oct. 31, Bush
nominated Alito, a federal appeals court judge.
The court's session Jan. 23, likely O'Connor's last day on the
bench, lasted less than 20 minutes. Her husband was in the
courtroom, as were some friends and former clerks.
As the justices stood to leave, O'Connor and Roberts moved
toward the steps behind the bench. Roberts offered to let
O'Connor go first. She urged him to go ahead. So Roberts
walked down the steps. And, as most of the spectators waited
and watched, O'Connor at last left the chamber.
Biskupic is the author of Sandra Day O'Connor: How the First
Woman on the Supreme Court Became Its Most Influential
Justice (HarperCollins)
For more educational resources,
Reprinted with visit http://education.usatoday.com
permission. All rights reser ved.
Her opinions set today's standards
As a moderate justice on an ideologically divided Supreme
Court, Sandra Day O'Connor has been a key vote. During her
quarter-century on the bench, she also has crafted many of the
standards under which cases are resolved in lower courts:
u Abortion — O'Connor wrote the court's current test for
when restrictions on abortion are not acceptable: when they
impose an "undue burden" on a woman seeking to end a
pregnancy. O'Connor's standard, accepted by a court majority in
1992, defined an undue burden as one that "has the purpose or
effect of placing a substantial obstacle in the path of a woman
seeking an abortion."
u Religious displays in public places — Since a 1984 case in
which the court upheld the inclusion of a Nativity scene in a
city's holiday display, O'Connor has said that judges weighing
whether such displays violate the Constitution's ban on
government endorsements of religion should consider whether
a "reasonable observer" would think so. By 1995, most of the
justices had adopted O'Connor's test. However, some justices —
namely Antonin Scalia -- say her standard is too subjective.
u Affirmative action — Her opinions during the 1980s and
1990s ensured that affirmative action programs that benefit
racial minorities are scrutinized as sharply as bygone programs
that were intended to penalize them. She said racial
classifications are inherently wrong, regardless of the reason for
them. In 1993, she wrote the court's decision that allowed white
voters to challenge the constitutionality of "bizarrely" shaped
congressional redistricting plans that appeared to classify voters
by race. The ruling opened the door to challenges of voting
districts drawn to boost the political power of blacks and
Hispanics. However, O'Connor supported educational programs
that benefited minorities. In 2003, she was the key vote to
uphold racial preferences in admissions at the University of
Michigan Law School.
By Joan Biskupic
Page12
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 CRITICAL INQUIRY

1. What does the scope of “freedom of speech” encompass? What types of speech are prohibited? Why? Why isn’t
free speech protected in the same way for minors as it is for adults?

2. Do you think that Justice Kennedy, as the new centrist or swing justice, wields more power than the Chief
Justice? In a small group, create a mindmap (newsprint would be great for this, but if none is readily available,
simply use an 8 x 11 piece of paper) to list and organize your reasons why or why not. Then, tape your mindmap
to the wall and do a gallery walk, wherein your group walks around the room viewing the
other mindmaps. When you return to your seats with your own mindmap, add reasons that you discovered
on other mindmaps to your own mindmap.

3. Hold a debate over placing limitations on student speech. Write debate talking points supporting your opinion,
then debate with a peer who holds the opposing view. Debater A (the debater selected to go first) will present a
two-minute argument for or against the issue. Then, Debater B will give his/her constructive argument. Next,
Debater A will begin the three-minute “crossfire” round in which the debaters will take turns asking each other
questions. These questions are intended to expose the weaknesses of the opponent’s argument. When the three
minutes has ended, Debater A will have one minute to sum up his/her views, rebutting his opponents and then
Debater B will have the same opportunity.

1. Do you think that the split between liberals and con-

servatives on the Court reflects trends in American FUTURE IMPLICATIONS
society overall? Why or why not? How do you predict
this will change over the next 30 years?

2. Given the profile of the current court, when do you think the next appointments will be? Do you think that the
Court is moving in a liberal or conservative direction? Explain your answer.

3. What are the long-term implications of the Supreme Court’s decisions? Unlike the executive and legislative branch-
es, members of the Supreme Court are appointed, not elected, to lifetime terms. Why do you think the Framers of
the Constitution set up our nation’s highest court this way? Should justices be elected? Why or why not?

ADDITIONAL RESOURCES

v Landmark Supreme Court Cases v Supreme Court of the United States

www.landmarkcases.org/ www.supremecourtus.gov/

v Pacific Legal Foundation v U.S. Supreme Court Media

www.pacificlegal.org/ www.oyez.org/

For more information, log on to www.usatodaycollege.com Page 13