Issues that could face the high court

Sunday, October 26, 2008 | 7:04 p.m. CDT; updated 10:04 p.m. CDT, Sunday, October 26, 2008

Below are some of the issues the U.S. Supreme Court could face over the next eight years, as addressed by Stephen McAllister, solicitor general for the state of Kansas and a former dean of the Kansas School of Law, and David Frederick, a former assistant solicitor general of the United States and a frequent advocate before the U.S. Supreme Court, at a recent debate held at the MU School of Law.

Reproductive rights

The most well-known U.S. Supreme Court decision concerning reproductive rights was Roe v. Wade in 1973. The ruling said that most laws banning abortion in the United States violated a constitutional right to privacy under the due process clause of the 14th Amendment. The Supreme Court has since limited the scope of Roe v. Wade in cases such as Planned Parenthood v. Casey in 1992, but it has never fully overturned the former decision.

McAllister argued that the current court is unlikely to overturn Roe v. Wade, although that could change if a conservative justice is appointed in place of a liberal one. Frederick said that overturning Roe v. Wade isn't necessarily the most important issue in reproductive rights. State legislatures have been nibbling away at abortion rights, and as long as the Supreme Court allows those state laws to stand, that right will continue to be encroached upon, regardless of whether Roe v. Wade is overturned, Frederick said.

Executive power and civil liberties

The Patriot Act of 2001, enacted by Congress after the terrorist attacks of Sept. 11, 2001, gave the president greater executive power. Although Congress passed the act, the Supreme Court plays a role in deciding how much executive power is constitutional, and McAllister said the court is closely divided on the issue. The conflict between national security and the infringement on civil liberties is a subject of heated debate.

"The world after Sept. 11, 2001, has changed in pretty dramatic ways," said Frederick, who was working at the U.S. Department of Justice at the time. "There are extremely difficult and complex issues of knowing when and where to draw certain lines."  


Sens. John McCain and Barack Obama have different views on executive power. Frederick thinks that Obama's position leans toward limiting power, while McCain favors stronger executive power.

However, McAllister said that, as president, Obama would be a bigger proponent of the Patriot Act than he is as a senator.

As president, either man would have to weigh security and the importance of civil liberties when making decisions, and the Supreme Court could step in, as it did on June 12 in Boumediene v. Bush.


The Supreme Court and Congress

Both Frederick and McAllister expect that Democrats will have a majority in both the House of Representatives and the Senate after the election on Nov. 4. If John McCain were to win the presidency, there would be a new level of robust congressional oversight, something that's been missing in the past four years, according to Frederick. If McCain is elected and asserts stronger executive authority in the style of President George W. Bush — as McAllister suggests he would — more disputes between the executive and judicial branches are likely to reach the court.

If Barack Obama wereelected president, he probably would meet less robust oversight. But in either presidency, there is bound to be more oversight than in the past presidential term.

The current U.S. Supreme Court, Frederick and McAllister agreed, is "imbued with enormous self-confidence" about its role in judging the actions of other branches. In recent years, it has struck down an unusually large number of acts of Congress as unconstitutional.  

"The really interesting question to me is whether or not a majority of the Supreme Court is going to view (its) role as reining in congressional exercises in power for what could be viewed by the public as policy reasons," Frederick said. "I have every faith that they would explain (their actions) in the light of their constitutional doctrine."

However, the high court's recent constitutional doctrine has been less deferential to Congress than ever before, Frederick pointed out. It will be interesting to see, he said, whether the court will dress up policy preferences as constitutional rules and principles when evaluating what is likely to be an increased output of statutory law by Congress.

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