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Supreme Court

04/25/07 12:00AM By Cheryl Hanna
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(HOST) With finals approaching, the students in Commentator Cheryl Hanna's Constitutional Law class are nervous about their exam. She explains why, given recent rulings by the Court, their exam may be even harder than they think.

(HANNA) What my students want most is to be taught the hard and fast rules of the law. They want to be able to predict the outcome of cases. They crave right and wrong answers.

Yet, when it comes to predicting how future cases might be decided, increasingly the only answer I can give them is, "it depends who's on the Court."

Take last week's decision in Gonzales v. Carhart and Planned Parenthood, in which, by a 5 - 4 margin, the Court upheld a federal ban on a certain late term abortion procedure.

The decision reversed fifteen years of the Court's previous insistence that any restrictions on a woman's right to terminate her pregnancy must contain a health exception.

And, despite the Court's recent insistence on state's rights, for the first time in our nation's history it gave Congress the power to regulate a medical procedure.

The only explanation for the ruling is that with Sandra Day O'Connor's resignation, there are five Justices, all male, and all Catholic, who want to see a woman's right to privacy either curtailed or eliminated altogether. The Court's only woman justice and her three male colleagues who want to preserve those rights no longer have the votes.

Whether you agree or disagree with the ruling, we all ought to be concerned about what this decision means for the Court itself.

Earlier this year, Chief Justice John Roberts said that his goal was to issue more unanimous decisions. He noted the dangers of split rulings, with Justice Kennedy now always the swing vote. These decisions give the appearance that the Court is nothing more than a mini-Congress, fighting over the politics of the day, rather than an institution above the partisan fray.

If nine of the supposedly greatest legal minds in the Country can't articulate clear legal principles, guided by deeper human values, and then reach consensus on issues which so deeply divide, what chance do the rest of us have?

The decision, to me, is further evidence of a crisis of leadership on the Court from the Chief Justice, who despite his intentions, doesn't seem able to bring much cohesion to the Court. And then there are those justices who have no problem imposing their own moral views rather than adhering to established legal principles and precedent.

Absent a significant change in the Court's composition, we're likely to see more areas of the law thrown into chaos and the Court's reputation further eroded.

In the meantime, my law students will have to accept that in Constitutional Law, there are rarely right or wrong answers. Rather, it's all about the power of convincing five. Sometimes you win, and sometimes you lose. It's hard to really capture that on an exam, so it's no wonder they're nervous. We all should be.

Cheryl Hanna is a professor at Vermont Law School in South Royalton.

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