NEW LEADER, TOUGH ISSUES FOR COURT IN TRANSITION

WASHINGTON - The Supreme Court that opens its new term on Monday will
be a court in transition, neither what it was when nine justices last
sat together in June, nor what it will be when Justice Sandra Day
O'Connor's successor arrives, freeing her to leave the bench some
months later than she had planned.

But it will be, indisputably, the Roberts Court.

To the most casual courtroom observer, the change will be obvious. A
vigorous 50-year-old, the youngest chief justice since John Marshall
took the oath 204 years ago at the age of 45, will be seated in the
center chair instead of his mentor, the 80-year-old William H.
Rehnquist, who labored to breathe through a tracheotomy tube and
consequently could speak only in short bursts during the last months
of his life.

There will certainly be other changes, less visible and immediate, as
Chief Justice John G. Roberts Jr. places his stamp on an institution
he first knew as a law clerk 25 years ago. What they will be is less
predictable, but there are at least some grounds for informed
speculation.

For example, in his clerkship year, the court issued opinions in 123
cases. Last term, the number was 74. The shrinking docket has been a
source of frustration to lawyers who practice before the court, among
whom John Roberts was a star performer before he became a federal
judge two years ago.

At his Senate confirmation hearing this month, he suggested that he
saw room for the court to hear and decide more cases. If that comes to
pass, reversing a 15-year trend, it could be an indication that Chief
Justice Roberts is exerting influence on his colleagues just as Chief
Justice Rehnquist, who thought the court was taking too many cases,
managed to do in the opposite direction.

In running the "conference," the closed-door, twice-weekly meeting at
which the justices discuss cases, Chief Justice Rehnquist prized
efficiency and had little patience for extended conversation or second
thoughts.

Some students of the court have attributed the lively and
question-filled nature of the justices' oral argument sessions during
the Rehnquist years to the fact that these sessions, one hour a case,
provided the only occasion for the justices to interact at length as a
group. If the justices now become more mellow on the bench, that could
mean that the conference is giving them an opportunity for a real
exchange of views.

The new chief justice will run the conference for the first time on
Wednesday afternoon, when the justices will discuss and take tentative
votes on the cases they hear on Monday and Tuesday. For lawyers who
practice before the court, this transitional period presents an
unusual challenge, in part because of the ambiguity of Justice
O'Connor's position. It has been common in close cases for lawyers to
pitch their arguments to Justice O'Connor, who often casts the
deciding vote.

For as long as she remains on the court, she will hear arguments and
vote on cases. But if a decision has not been issued by the time her
retirement takes effect, her vote will not count. Her successor cannot
vote retrospectively. Some important cases are therefore likely to
result in 4-to-4 ties, giving the court the choice of rehearing the
case or simply affirming the lower court opinion by the tie vote, an
action that carries no precedential weight.

The court has already granted review in 48 cases, enough to fill the
new term's argument calendar into February. The list includes cases
likely to produce vigorous debates among the justices, leading to
decisions that may help to define the Roberts Court. Abortion,
religion, free speech, the death penalty and federalism are among the
subjects at hand. The court's announcement on Tuesday that it was
adding two campaign finance issues to the calendar raised the
temperature of the new term considerably.

Appeals challenging Vermont's tight limits on candidates' spending
provide an opportunity for the court to reconsider its 1976 decision,
Buckley v. Valeo, that equated campaign spending with speech and has
generally been interpreted as prohibiting such limits. The Vermont
cases are Randall v. Sorrell, No. 04-1528, and Vermont Republican
State Committee v. Sorrell, No. 04-1530.

The second campaign finance question is whether grass-roots advocacy
groups should be exempt from limits that the McCain-Feingold law
placed on political advertising paid from corporate treasuries in the
weeks before Election Day.

Although the Supreme Court turned back a broad challenge to the law
two years ago, that decision left uncertainty about whether a
single-issue lobbying group, while organized as a corporation, could
claim a First Amendment right to an exemption. The case is Wisconsin
Right to Life Inc. v. Federal Election Commission, No. 04-1581.

The abortion case, Ayotte v. Planned Parenthood of Northern New
England, No. 04-1144, with the argument scheduled for Nov. 30, raises
substantive and procedural issues in the context of a New Hampshire
law that requires girls younger than 18 to notify their parents or
receive a judge's permission before obtaining abortions.

A federal appeals court invalidated the law because it lacked an
exception for emergency situations. The Supreme Court has insisted
that despite state-imposed restrictions, women must be able to
terminate pregnancies that threaten their health. The case therefore
poses a question about the breadth of the required "health exception."
It also raises the procedural question of the circumstances under
which an abortion law that has not yet gone into effect can be
challenged in court.

Another abortion case reached the court last week, an appeal by the
Bush administration of a ruling that invalidated the federal law that
bans the procedure that abortion opponents call "partial-birth abortion."

Five years ago, the court struck down a similar law in a case from
Nebraska, 5 to 4, with Justice O'Connor in the majority and Chief
Justice Rehnquist in dissent. If the court accepts the new case, the
argument will not be until next spring, placing Justice O'Connor's
successor in a position to cast the deciding vote.

On Wednesday, the court will hear one of the term's most high-profile
cases, the Bush administration challenge to the only state law in the
country that authorizes physician-assisted suicide. The question in
Gonzales v. Oregon, No. 04-623, is whether the Controlled Substances
Act authorizes the federal government to revoke the federal
prescription license of any doctor, following the Death With Dignity
Act in Oregon, who gives a terminally ill patient a lethal dose of
prescription drugs.

While the case is principally one of Congressional intent and
statutory interpretation, it has the federalism overtones of the
medical marijuana case in the last term, as well as the resonance of
the debate over assisted suicide. In 1997, the court rejected the
argument that there is a constitutional right to assisted suicide, but
at the same time invited continued state innovation with policies on
behalf of terminally ill patients.

Bringing the federalism debate directly back to the court, the
government is appealing a ruling that states do not have to give their
prison inmates the protections of the Americans With Disabilities Act.
The case, United States v. Georgia, No. 04-1203, will be argued Nov. 9
and presents another challenge to Justice O'Connor's successor. She
voted as part of the 5-to-4 majority two years ago in rejecting state
immunity and applying the disabilities act to require accessible
courthouses.

Another case the government has brought to the court lies, at least
from one point of view, at the intersection of free speech and gay
rights. The question in Rumsfeld v. Forum for Academic and
Institutional Rights Inc. (FAIR), No. 04-1152, is whether the
government can withhold or withdraw its financial support of an entire
university if any school within the university does not grant military
recruiters the same access to students granted to others who come to
the campus with offers of employment.

Many law schools have restricted military recruiting because they
disapprove of the policy that bars military service by openly gay men
and lesbians. In response, Congress passed the Solomon Amendment,
which requires equal access to campuses as a condition on the receipt
of federal grants and contracts.