Kennedy Seen as The Next Justice In Court's Middle

The Bush administration argues that the tribunals are based both on the president's constitutional powers as commander in chief and on the Sept. 14, 2001, joint congressional resolution authorizing the use of force to battle terrorists.

The administration prevailed in the U.S. Court of Appeals for the District of Columbia Circuit, in a decision joined by Roberts while he was still a judge on that court.

Roberts will have to sit out the case at the Supreme Court, leaving just eight justices to decide the matter.

The outcome is difficult to predict; in the past, court conservatives have splintered on similar issues, with Thomas lining up fully behind the administration, Kennedy and Rehnquist lending partial support, and Scalia actually joining with the court's most liberal member, Stevens, in rejecting the administration's claim that it could indefinitely hold a U.S. citizen captured in Afghanistan without charges.

One option for the court would be to dismiss the matter, citing a new law enacted by Congress that, in the administration's view, strips the courts of jurisdiction to hear challenges to the tribunals. But Hamdan's lawyers are resisting that.

The court will soon meet in closed-door conference to decide whether it should hear a case on the constitutionality of the federal law banning the late-term abortion procedure known by opponents as "partial birth."

The law, passed in 2003 and signed by Bush, has been struck down by lower federal courts. They cited a 2000 decision striking down state bans on late-term abortion -- a case in which O'Connor cast the fifth and deciding vote.

Alito opposed the court's abortion rights rulings as a young Reagan administration aide, and voted to uphold a state limitation on abortion rights in a 1991 case. But as a federal appeals judge, he applied Supreme Court precedent in striking down a New Jersey late-term abortion ban.

Also, the court will have to decide whether to hear the case of Jose Padilla, a U.S. citizen arrested and held in military custody without charges as an "enemy combatant." The Bush administration has recently turned him over to civilian authorities, but Padilla's lawyers say the constitutional issue is still alive.

If the court accepts either or both of the cases, it would probably hear them during the term beginning in October.