The Roberts Court, Take Two

By MARK THOMPSON

Counsel, sharpen your legal arguments. The Supreme Court returns for its new term this week, and it's expected to be a corker. This will be the court's first full term with Samuel Alito in Sandra Day O'Connor's old seat. And on the docket are a raft of high-profile cases on hot-button issues that should give the best indication yet of the decision-making dynamics and working style of the John Roberts era. Here's a look at what to expect.

1 UNANIMITY IS JOHN ROBERTS' GOAL

During Chief Justice Roberts' honeymoon term, about half the court's decisions were unanimous--nearly double the typical tally in recent years. This term, big cases on divisive social issues mean Roberts is likely to struggle to build such consensus. Still, he'll try in order to boost the court's "stature and legitimacy," he said in July. When the court can choose either a narrow but unanimous ruling or a sweeping, landmark decision by a 5-4 vote, he said, "I think it's better to decide on the former ground, and let it go at that."

2 ANTHONY KENNEDY, THE SWING JUSTICE

With Sandra Day O'Connor retired and his colleagues evenly divided, centrist Kennedy is the likely swing vote in tight cases. He began to play the role last term--with characteristic moderation. He sided with conservatives to limit the reach of the Clean Water Act but voted with the liberals to declare unconstitutional the Bush Administration plan to try alleged terrorists before military tribunals.

3 FLASHPOINT NO. 1: ABORTION

Watch for Kennedy's leanings in November, when the court hears arguments on the constitutionality of the 2003 federal ban on dilation-and-extraction (a.k.a. partial-birth) abortions. In 2000, when the court struck down a similar ban enacted by Nebraska, Kennedy voted with the minority. This time the question is whether he'll be swayed more by his aversion to abortion or his respect for precedent.

4 FLASHPOINT NO. 2: AFFIRMATIVE ACTION

In December, the court will wrestle with whether race can be used to assign pupils to public elementary and secondary schools. White parents from Louisville, Ky., and Seattle, backed by the Bush Administration, argue that using race as a deciding factor violates the constitutional right to equal protection. The most recent precedent: 2003, when the court ruled 5-4 that race could be used as a factor in admissions to public universities. Kennedy, who dissented in that case, could swing the decision the other way now.