Supreme Court Heads To Busy Finish As Souter's Retirement Looms

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Published on Saturday, 16 May 2009

Written by Mark Sherman, AP

Justice David Souter's final few weeks of work will be busy ones for the Supreme Court, which has yet to resolve disputes over a major part of the Voting Rights Act, federal campaign finance law and job discrimination claims by white firefighters.

Before they begin their lengthy summer break, the justices also must decide cases concerning judicial ethics, the rights of convicts to test genetic evidence, and a strip search of a student who was thought to be hiding the equivalent of prescription-strength Advil.

The court's work will be done against the backdrop of Souter's looming retirement, announced May 1, and President Barack Obama's nomination of a successor. Obama has said he wants the new justice in place by the time the court's next term begins on Oct. 5.

Souter's final words as a justice could be in dissents if, as seems likely, a conservative court majority hands the Obama administration defeats in the voting rights and campaign finance cases. Broad rulings could upset decades of settled practice in both areas.

The voting rights dispute is a challenge to Congress' renewal of a provision that requires all or parts of 16 states, mainly in the South and with a history of discrimination, to get voting changes approved in advance by the Justice Department. The provision has been the primary means of preventing discriminatory state and local election laws since the Voting Rights Act was enacted in 1965.

The local Texas governing authority that is challenging Section 5 of the voting rights law says much has changed in the past 44 years, making the advance approval requirement unnecessary. The court's conservative justices appeared sympathetic to that view when they heard the case in late April and could be willing to strike down the measure in its entirety.

The campaign finance case involves a scathing 90-minute documentary about Secretary of State Hillary Clinton that was made by a conservative group when she was running for the Democratic presidential nomination. The issue is whether the film can be regulated as a campaign ad.

Citizens United, the conservative not-for-profit group that made the movie, wanted to air television ads in important Democratic primary states and also make the movie available to cable subscribers on demand, without complying with federal campaign finance law.

When the court heard arguments in March, it appeared possible the justices could overrule a long-standing ban on the use of general corporate and union money in federal election campaigns.

Souter, 69, has shown a special interest in both areas, said Richard Hasen, an election law expert at Loyola Law School in Los Angeles. "I'm sure there'd be a taste of bitterness in his mouth if the end of the term saw the demise of limits on corporate spending in elections and Section 5 of the Voting Rights Act," Hasen said.

While Souter's imminent departure will draw much attention between now and late June, all eyes will be on Justice Anthony Kennedy, the conservative-leaning justice whose vote ends up deciding cases on which the court is ideologically divided.

Kennedy probably will determine how far the court goes in the voting rights case, one of several open cases that have civil rights issues at their core.

The 72-year-old Californian also probably will play a crucial role in the challenge mounted by white firefighters in New Haven, Conn., to the city's decision to scrap a promotion exam for captains and lieutenants after too few minorities scored high enough to be promoted.

The question in that case is whether New Haven, in trying to avoid discriminating against the minority firefighters in violation of the 1964 Civil Rights Act, violated the civil rights of the white firefighters under the same law.

A teenage student's rights are at issue in the court's consideration of a school administrator's decision to order a strip search in his hunt for prescription-strength ibuprofen.

The federal appeals court in San Francisco ruled that the search of 13-year-old Savana Redding of Safford, Ariz., violated her constitutional rights. The search turned up nothing.

But the justices -- with the exception of the only woman on the high court, Ruth Bader Ginsburg -- appeared more concerned with allowing school administrators the freedom to search for potentially dangerous objects on school grounds than they did with the trauma to an adolescent who was asked to strip to her underwear and then shake out her bra and panties.

The justices also have before them an issue that cuts close to home, a dispute from West Virginia about when the appearance of bias should force a judge not to take part in a case. The dispute centers on the refusal of state Supreme Court Justice Brent Benjamin to step aside from a case that involved the company of the man who spent more than $3 million in support of Benjamin's election. The justice then cast the deciding vote in overturning a verdict, now worth more than $82 million, against the company.

Associated Press writer Jesse J. Holland contributed to this report

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