ONE COULD almost forget in all the hullabaloo about President Bush's Supreme Court nominations that the function of the nation's high court is not to generate confirmation battles but to hear cases. Today, however, is the first Monday in October, which means that the court -- now officially the Roberts Court -- begins its new term. Even with the docket as yet incomplete, the term promises to be interesting, not only because of new personnel but because the court has a number of important cases on hot-button issues.
Last week the court agreed to hear a pair of campaign finance cases that invite it to rewrite settled law on the regulation of money in politics. In one, Vermont is trying to enforce campaign spending limits of the type the court struck down in the landmark case of Buckley v. Valeo, while plaintiffs are challenging the type of contribution limits that the court has repeatedly upheld. In the other, a group of Wisconsin antiabortion activists is seeking to carve a yawning loophole into the McCain-Feingold campaign finance law, which the court only recently upheld. Either of these cases could be enormously destabilizing to election law, which is working pretty well and doesn't need a judicial overhaul.
The court will have at least one major abortion case this term, and it will probably add a second. This second case -- assuming the court decides to hear it -- is not hard legally, but it is politically sensitive. It concerns Congress's ban on "partial birth" abortion, which was passed after the court struck down similar state prohibitions. Unless the court is ready to upset its previous decision, which it certainly should not do, the federal law must also be overturned. The case the court has already taken is a tougher one: a New Hampshire law providing for parental notification when minors have abortions. The law has an exception for situations in which the life of the mother is threatened but not her health. At the same time, it does have a mechanism for judges to override the notification provision in the minor's best interests.
The court will also consider the Justice Department's crusade against Oregon's allowance of physician-assisted suicide for the terminally ill. The Rehnquist Court tried to revitalize the powers of states in America's federal system; here, the federal government -- using unrelated drug laws -- is attempting to thwart the choice of the people of Oregon, who approved assisted suicide in a referendum. Federalism has little meaning if state wishes are overridden in this case.
The court will also review an appeals court ruling striking down a federal law that cuts off funding to universities that don't treat military recruiters as favorably as those recruiting for other employers. Many law schools have refused assistance to military recruiters, since the military's "don't ask, don't tell" policy toward gays and lesbians runs afoul of their anti-discrimination policies. The gay ban is indefensible, but the lower court went out on a limb in rejecting the law on First Amendment grounds.
Finally, the court will hear a series of death penalty cases. Most important is a Tennessee case in which a death row inmate claims that new DNA evidence exonerates him. The court will need to decide the long-simmering question of how strong newly discovered evidence of innocence must be before it supersedes normal appeals procedures.
The court could still add other controversial cases concerning, for example, enemy combatant detentions or military tribunals at Guantanamo. In short, the first term of the Roberts Court could make a big splash. But this would be unfortunate. A better start for a new chief justice who embraces modesty as a virtue would be to produce, out of this volatile caseload, unsensational results.