Supreme Court to Avoid Sweeping Constitutional Changes in 2007

The U.S. Supreme Court’s first full term with Chief Justice John Roberts and Associate Justice Samuel Alito on board will yield few blockbuster decisions, a University of Alabama constitutional law expert predicts.

Despite the presence of the two new Bush appointees, UA law professor Bryan Fair says the Supreme Court will “seek to avoid sweeping constitutional change.”

“I expect the court to continue to decide fewer than 90 cases per term and to avoid deciding cases broadly. In a half dozen cases the court will fracture into numerous opinions, providing limited guidance to the lower federal courts,” Fair says.

The current Supreme Court term has already seen a number of controversial cases argued, including the scope of EPA’s power under the Clean Air Act, whether the 2003 Partial-Birth Abortion Ban Act meets constitutional requirements, and whether public schools may use race as one factor, even if decisive, in an effort to maintain racial balance, Fair points out.

The public school case, which will determine whether public schools that use race to accomplish integration violate the Equal Protection Clause in the same way that the use of race to promote segregation violated the Constitution, will have significant implications for educational equity. “Justices Souter, Ginsburg, Breyer, and Stevens will search for one more vote to keep affirmative action alive,” Fair says, “I predict they will lose.”

Fair says partial birth abortion will also be quite contentious for the court, with some justices insisting that every post-viability statute must preserve exceptions for abortions threatening the life and health of the mother and other justices affirming the narrower protection for the life of the mother. “I expect Justice Kennedy to be the pivotal vote, affirming his undue burden test, but concluding that the federal statute does not impose an undue burden on the right to terminate a pregnancy.” Fair says.