United States Supreme Court Wrap-up 2007
By Colin Darke
Colin Darke is a student in the Graduate Program in Banking and Financial Law at Boston University School of Law. He can be contacted at colindarke@gmail.com.
The honeymoon is over for U.S. Supreme Court Chief Justice John G. Roberts. In his inaugural 2005–06 term, Chief Justice Roberts touted that he would push for unanimity in the Court’s decisions, and he was able to deliver many 9–0 decisions. The Court’s 2006–07 term, however, provided many contentious 5–4 decisions, which revealed more of the true makeup of the Roberts Court. Below are a few cases highlighting the Court’s new dynamic.
One for Congress
The 2006–07 term established Justice Kennedy as the Court’s crucial swing vote. One of this term’s cases where Justice Kennedy’s powerful vote swung more to the conservative side is Gonzales v. Carhart, 127 S.Ct. 1610 (2007).
Gonzales was one of the Court’s more controversial cases as it dealt with the contentious issue of a woman’s reproductive rights. In 2000, the Court struck down a Nebraska ban on “partial-birth” abortion in Stenberg v. Carhart, 530 U.S. 914 (2000). The Stenberg Court held that the Nebraska statute was unconstitutional because (1) it did not have an exception to the ban on “partial-birth” abortions for situations involving the preservation of the mother’s health and (2) it placed an undue burden on a woman’s ability to choose an abortion by prohibiting more than late-term “partial-birth” abortions.
In response to the Stenberg decision, Congress enacted the Partial-Birth Abortion Ban Act of 2003. In Gonzales, certain physicians sued then-United States Attorney General Alberto Gonzales to prohibit enforcement of the Act. The physicians argued that the Act was unconstitutional on its face similar to the way that the Nebraska statute in Stenberg was unconstitutional. Writing for the majority, Justice Kennedy quickly distinguished the language of the Partial-Birth Abortion Ban Act from the language used in the Nebraska statute. The Court found that the Act, unlike the Nebraska statute, was not void for vagueness because it prohibited a physician from “knowingly perform[ing] a partial-birth abortion . . . that is [not] necessary to save the life of the mother.” The Act also explicitly defined the prohibited procedure. The Act’s scienter requirement and explicit definition saved it from the vagueness problem of the Nebraska statute because a doctor “of ordinary intelligence [has] a reasonable opportunity to know what is prohibited.”
The Court further reasoned that the Act was in line with its previous Planned Parenthood v. Casey and Roe v. Wade decisions in balancing a woman’s reproductive rights against a state’s rights in protecting the health, safety, and welfare of its residents. The Court explained that the Act did not regulate first- trimester abortions, but rather a specific second-trimester procedure referred to as “intact dilation and evacuation.” The Court also asserted that the Act was not overly broad because it
recognized a state’s interest while not imposing an undue burden on a woman’s right to an abortion.
One for Big Business
Justice Kennedy was also the crucial swing vote in several Supreme Court decisions this term that some commentators felt favored big business. One such case was Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S.Ct. 2705 (2007), in which a retailer sued a manufacturer for violating federal antitrust laws by “refusing to sell to retailers that discount its goods below suggested prices.” The retailer and the lower courts relied on the Court’s decision in Dr. Miles Medical Co. v. John D. Park & Sons Co., 31 S.Ct. 376 (1911), for the per se rule that such vertical pricing agreements violated Section 1 of the Sherman Act.
The manufacturer argued that the Dr. Miles decision was outdated and that the common law rule of reason for antitrust cases should be applied to its case. The lower courts relied on the per se rule and would not consider any procompetitive justifications for the manufacturer’s policy.
Writing for the majority, Justice Kennedy sided with the manufacturer. The Court overruled the Dr. Miles decision and sided with the manufacturer’s argument that the decision was outdated and not in line with contemporary economic realities. The Court held that the rule of reason, which requires a fact finder to weigh “all of the circumstances,” including “specific information about the relevant business” and “the restraint’s history, nature, and effect,” was a more appropriate recognition of the underlying antitrust policies. Specifically, the Court held that courts should have the ability to distinguish between those restraints that are anticompetitive and those that may be procompetitive and should not be handcuffed to a per se rule.
For a more in-depth U.S. Supreme Court summary and to learn about two other 5–4 decisions, check out TYL online: www.abanet.org/yld/publications.html
 

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