Court Consistency

By None, The Barre Montpelier Times Argus, March 8, 2006

Editorial

Chief Justice John Roberts and his fellow justices will get an early chance to put their stamp on the newest iteration of the Supreme Court.

The first indication of the court's overall philosophy may well come from Randall v. Sorrell, the case over Vermont's campaign finance law. Although the justices spent little time on this aspect in Tuesday's oral arguments, one of the cornerstones of the Vermont case is that states ought to have the right to police their own elections as their citizens see fit.

Safeguarding states' rights was widely seen as one of the hallmarks of the Rehnquist court, at least until the justices decided that settling the 2000 presidential election was more important than allowing the Florida Supreme Court to rule on its own election statutes.

One of the last acts of the Rehnquist court was to uphold an Oregon law allowing physician-assisted suicide for terminally ill patients, largely on the grounds that states' rights superceded federal law. In this case a fairly ham-handed attempt by then-Attorney General John Ashcroft to prevent doctors from participating in Oregon's death with dignity initiative by threatening to take away their medical licenses.

It infuriated many conservatives that a court with a majority of Republican appointees did not follow "conservative" principles in cases like that one, but it was consistent with the court's general philosophy of allowing states to make their own laws.

While the justices seemed skeptical of Vermont Attorney General William Sorrell's arguments on Tuesday, they may still fall back on the idea that states need leeway within the broad framework of the Constitution to determine things like campaign spending limits.

It may be that the court, after accepting the case for argument, will decide to support the 1976 campaign finance ruling as settled precedent and so reject the Vermont law.

But the true test of the court's mettle will come when it gets a second case on states' rights on something like abortion.

South Dakota's new law broadly banning abortion seems to be on a collision course with Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. It is likely to appear before the court as a matter of South Dakota's right to pass a law at odds with Roe v. Wade.

It may well be that the Roberts court will rule consistently, either in favor of states' rights in both cases or in favor of settled precedent in both cases.

Such consistency will not sit well with special interest groups on either end of the political spectrum. The right opposed Vermont's campaign law but favors banning abortion. The left supported more stringent campaign finance restrictions but opposes limits on abortion.

If the judges give primacy to states' rights, they will allow both South Dakota's abortion ban and the Vermont campaign finance restrictions. If they give primacy to settled precedent, they will reject both new laws. Either scenario would be a good omen for the future of the Supreme Court as an impartial, respected arbiter of the law.

The problem would be if the court picks and chooses: supporting a state's right to ban abortion but not to limit campaign finance — or vice versa — or allowing a challenge to one ruling from the mid-1970s and upholding the other decision as settled precedent.

In their confirmation hearings, newly appointed justices Roberts and Alito pledged to hear cases without a political filter. It seems they will get the chance to prove or disprove they are as good as their word sooner rather than later.

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