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Last Updated: Monday, 1 October 2007, 15:32 GMT 16:32 UK
US Supreme Court's swing to right
By Laura Smith-Spark
BBC News, Washington

As the US Supreme Court begins a new term, it promises once again to become the stage where America's ideological battles are played out.

US Supreme Court (file image)
Decisions at the Supreme Court affect the daily life of Americans

The cases the nine justices have picked to consider range from the use of lethal injection to voter ID laws and the legal rights of detainees at Guantanamo Bay.

The right of Americans to bear arms could also be examined for the first time in decades, if the court decides to hear two cases relating to gun control laws in Washington DC.

With close votes expected on all these issues, observers will be watching keenly to see if the court maintains the shift to the right seen in the last term.

Key to that will be the actions of Justice Anthony Kennedy, most often the swing voter on the court.

In the 2006 session, of 19 cases that divided 5-4 along ideological lines, the conservative block won 13 and the liberal block six - and almost every time, Mr Kennedy's was the deciding vote.

Among the conservative victories were rulings upholding a ban on partial-birth abortion and striking down programmes in Seattle and Kentucky which used race as a factor in school admissions in order to maintain diversity in schools.

Reverse tack

Two of the most anticipated cases of the new term involve the rights of terror suspects held at Guantanamo Bay prison camp to challenge their indefinite detention as "enemy combatants".

John Roberts (left) with President George W Bush as he was nominated chief justice, July 2005
John Roberts was President Bush's first appointee to the court

The Supreme Court refused in April this year to hear the cases but, unusually, reversed its decision three months later and agreed to hear the detainees' appeal in this session.

At issue is a 2006 law, passed by Congress and signed by Mr Bush, which prohibits Guantanamo Bay detainees from challenging their confinement in federal courts and states their cases can only be heard by military commissions, not civilian courts.

The justices will decide whether in doing so, the law has violated the constitutional requirement to provide habeas corpus - a procedure under which someone who holds a prisoner is required to show reason why to a court - to prisoners in the US.

The US Appeals Court for the District of Columbia Circuit ruled that habeas corpus does not apply to foreign nationals being held at Guantanamo Bay because it is not US soil.

Professor AE Dick Howard, of the University of Virginia School of Law, said the Guantanamo cases would be "front and centre" of the new session.

"This is going to be a term that is especially closely watched because, by the time it concludes, we will be on the verge of an election," he said.

Voter fraud

The Supreme Court's decision to review an Indiana state law requiring voters to show government-issued picture ID could have a direct bearing on that November 2008 election.

Justice Samuel Alito
Justice Samuel Alito replaced Sandra Day O'Connor, a swing voter

Passing the law in 2005, Indiana's Republican-controlled state legislature cited the need to prevent electoral fraud.

However, opponents argue the law unfairly limits people's right to vote, affecting in particular the poor, elderly and minorities, who find it harder to obtain the official documents needed. Typically, those groups would tend to vote Democrat.

They also point out that Indiana has never prosecuted a case of voter fraud.

Giving the majority ruling in a lower appeals court in Chicago, Judge Richard Posner said the law's goal of reducing voter fraud was more important than the burden imposed on voters.

But Judge Terence Evans, in his dissent, responded: "Let's not beat about the bush. The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage Election-Day turnout by folks believed to skew Democrat."

Election law specialist Richard Hasen, of Loyola Law School, Los Angeles, said the result of the review was likely to hinge on Justice Kennedy's vote.

"It all comes down to how closely the court will scrutinise the evidence supporting the law - and it's an open question as to what the court's going to do," he said.

If the Supreme Court upheld the law it could have some consequences in terms of the November 2008 elections, he said, and might encourage many other Republican-controlled state legislatures to follow suit.

Execution protocol

Another high-profile case involves a challenge to the constitutionality of lethal injection as a means of execution, brought by two death row inmates in Kentucky.

Gurney used for administering lethal injections (file picture)
Some executions will be delayed until the Supreme Court rules

They argue that the usual three-drug cocktail used inflicts unnecessary pain and suffering, thus violating the US Constitution's Eighth Amendment ban on cruel and unusual punishment.

The last time the Supreme Court considered a challenge to an execution method was in 1879, when it upheld the use of a firing squad in Utah.

Elisabeth Semel, director of the Death Penalty Clinic at the University of California law school in Berkeley, said the court was unlikely to ban the use of lethal injections.

But, she said, the very fact it was being considered suggested that at least four justices were concerned about the way states were setting different standards on the issue.

'Clearer picture'

Whatever decisions the court reaches, analysts agree that it seems likely its shift towards the right will continue - and that that could be the longest-lasting legacy of President George W Bush's second term in office.

The court is nearer to having an authoritative conservative majority than at any time in decades
Prof AE Dick Howard

The new session will be the court's second full term with Chief Justice John Roberts at the helm and newest addition Samuel Alito in place.

Both were nominated by Mr Bush and both have consistently voted with the court's other conservatives, Clarence Thomas and Antonin Scalia.

Mr Roberts replaced Chief Justice William Rehnquist, who died in 2005, and Mr Alito took the place of Sandra Day O'Connor - who often held the swing vote on key issues - when she resigned.

"I think we got a much clearer picture of what a Roberts court will be from the [term] that's just ended," said Prof Dick Howard.

"The court is nearer to having an authoritative conservative majority than at any time in decades."

Meanwhile, liberal justices John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer, have become more vocal as they have found themselves unable to prevent the apparent right-wards swing.

Mr Breyer delivered a forceful rebuke as he presented his dissenting opinion after the 5-4 decision that school boards in Seattle and Kentucky could not use race in admissions in order to maintain diversity in schools.

"It is not often in the law that so few have so quickly changed so much," he said.

SEE ALSO
US court reviews lethal injection
25 Sep 07 |  Americas
US court admits Guantanamo cases
29 Jun 07 |  Americas
US rejects school action on race
28 Jun 07 |  Americas
Court eases TV ad election curbs
26 Jun 07 |  Americas
US student loses free speech case
25 Jun 07 |  Americas
'No challenge' to US faith scheme
25 Jun 07 |  Americas

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