A better balance

October 01, 2007

With about a term and a half now under its belt, the U.S. Supreme Court under Chief Justice John G. Roberts Jr. and Associate Justice Samuel A. Alito Jr. has made a sharp turn to the right. As a new term begins today, the court will have at least three major opportunities to reassert fundamental constitutional rights of individuals in confronting government policies. Certainly, the court should be more protective of individual rights than it generally has been so far.

As predicted, Justices Roberts and Alito have lined up with their more conservative colleagues, Antonin Scalia and Clarence Thomas, just as the more liberal John Paul Stevens, David H. Souter, Stephen G. Breyer and Ruth Bader Ginsburg have tended to band together. That has left Justice Anthony M. Kennedy to provide the swing vote in some controversial rulings, including disapproving a late-term abortion procedure and efforts by local school districts to voluntarily promote diversity.

This term, there are already a few major issues that will test the pattern:

Habeas corpus. The justices are again being asked to consider whether prisoners from the war on terror can be detained at Guantanamo indefinitely without trial. We hope the court's rather abrupt decision to hear new cases, after refusing to do so just two months earlier, means that there are at least five votes against the constitutionality of provisions of the Military Commissions Act of 2006 that limit habeas corpus petitions.

Lethal injections. It would be a welcome decision if a court majority should agree with two men on Kentucky's death row who are challenging a combination of three drugs commonly used in lethal injections. This method has sometimes proved to be unreliable and painful - standards by which the inmates want courts to have to evaluate lethal injections.

Voter identification. The court should reject an Indiana law that requires voters to present government-issued photographic identification when they go to the polls - a direct consequence (together with similar laws in more than 20 states) of the disputed Florida results in the 2000 presidential election. There are other ways of fighting voter fraud without burdening the elderly, poor, homeless and other groups before they can exercise a basic right.

We hope that in these and other civil rights, environmental and criminal cases, the court will strike a better balance between government assertions of power and individual rights.

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