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Legal terms senators will ask Roberts about
Monday, September 12, 2005

WASHINGTON -- The confirmation hearings for chief justice nominee John G. Roberts Jr. that begin today are likely to feature as much legal lingo as a law-school seminar. The following is a viewer's guide to legal terms, federal statutes and court decisions likely to be mentioned during the hearings.

Abrogation [of sovereign immunity]. Under the 11th Amendment, a state may not be sued in federal court by a citizen of another state -- a prohibition that the Supreme Court later extended to suits by a citizen against his own state. But Congress may override or "abrogate" that immunity if it amasses evidence convincing to the high court that state governments are violating the 14th Amendment's guarantee of "due process of law" and "equal protection` of the laws."

Color-blindness. The notion, frequently invoked by opponents of affirmative action, that the Constitution's guarantee of "equal protection of the laws" and the 1964 Civil Rights Act prohibit laws that confer any benefits on the basis of race, even if the beneficiaries are members of groups that were the victims of racial discrimination in the past.

Comparable worth. A system in which a government agency sets pay scales based on whether jobs done primarily by women (e.g., nursing) are of "comparable worth" to those mostly done by men (e.g., truckdriver). As a lawyer in the Reagan administration, Roberts called the concept "pernicious" and "anti-capitalist."

Commerce clause. Article I, Section 8, of the Constitution, gives Congress authority "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

"Court-stripping." This refers to attempts by Congress to use its constitutional authority to define the jurisdiction of the federal courts to remove controversial subjects -- such as busing for school desegregation or prayer in public schools -- from judicial scrutiny.

Gonzales v. Raich. A 2005 decision in which the court ruled 6-3 that Congress had the authority under the commerce clause to outlaw the use of marijuana for medical purposes even if such use were allowed by state law and the marijuana were grown entirely inside state lines.

Grutter v. Bollinger. A 2003 decision in which the court ruled 5-4 that the University of Michigan Law School did not violate the Constitution when it took race into account in admissions decisions "to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."

Habeas corpus. Latin for "you must have the body." The "Great Writ" of habeas corpus is filed to obtain the release of a person who claims wrongful imprisonment. In 1996, Congress cut back on the right of prisoners to use the writ to seek release or a new trial in federal court, requiring that they file their petitions within a year of the conclusion of appeals in the state judicial system.

Hamdan v. Rumsfeld. A July 15, 2005, decision by the U.S. Court of Appeals for the District of Columbia in which Roberts joined the majority opinion upholding the legality of the military tribunals established by the Bush administration to try foreign suspected terrorists at Guantanamo Bay.

Kelo v. New London. A 2005 Supreme Court decision in which the court by a 5-4 vote ruled that a distressed Connecticut city did not violate the Constitution when it seized private property through eminent domain for a redevelopment plan anchored by a private business.

Lawrence v. Texas. In this 2003 decision the court by a 6-3 vote struck down a Texas law that made same-sex sodomy a crime.

Planned Parenthood of Southeastern Pa. v. Casey. In this 1992 decision the court by a 5-4 vote upheld the "essential holding" of Roe v. Wade.

National Court of Appeals. In the 1980s, Chief Justice Warren Burger proposed the creation of an appellate court in between the regional U.S. Courts of Appeal and the Supreme Court in order to reduce the Supreme Court's workload. Roberts opposed the idea, suggesting that the high court had only itself to blame for its heavy workload. He said the justices take too many cases and "issue opinions so confusing that they often do not even resolve the question presented."

Privacy, the right of. Although the Constitution does not explicitly cite a right to privacy, the court has said that several of its provisions -- including language in the Fifth and 14th Amendments protecting "liberty" -- safeguard such privacy rights as the right of couples to obtain birth control and a woman's right to an abortion.

Rational-basis test. In reviewing some laws -- primarily those dealing with economic regulation -- the Supreme Court asks if there is a "rational basis" for the legislation. A much more lenient standard than 'strict scrutiny," the rational-basis test usually leads to a ruling that a law is constitutional even if it is incomplete or inconsistent in dealing with a problem.

Stare decisis. Latin for "to stand by things decided," this is the doctrine that courts should adhere to precedent. Judges on lower federal courts are bound to follow precedent set by the Supreme Court, but the high court is free to overrule its own previous decisions, although some justices are reluctant to do so out of a concern for stability in the law.

Substantive due process. This paradoxical-sounding term refers to holdings by the Supreme Court in several cases that some "liberty" interests are so fundamental that infringements upon them violate the Due Process Clause no matter what procedures are established.

Suspect classification. In deciding on the constitutionality of a law that treats some classes of people different than others, the Supreme Court employs strict scrutiny when a group disfavored by the law is a "discrete and insular" minority likely to have its interests slighted in the political process. Race is the classic "suspect classification."

Sovereign immunity. This is the doctrine from traditional English law that the government may not be sued without its permission.

Title IX. Title IX of the Education Amendments of 1972 prohibits gender discrimination in "any education program or activity receiving federal financial assistance" and most often gains public notice when used to enforce a rough equality between men's and women's college sports programs.

United States v. Lopez. In this 1995 decision the court by a 5-4 vote struck down the federal Gun Free School Zone Law, saying that Congress had exceeded its power under the Commerce Clause to regulate activities under the purview of the states.

United States v. Morrison. In this 2000 decision the Supreme Court held 5-4 that Congress exceeded its authority under the Commerce Clause in providing federal legal remedies for victims of sexual violence.

Wallace v. Jaffree. This 1985 Supreme Court decision struck down an Alabama law providing for a moment of silence in public-school classrooms "for meditation or voluntary prayer." As a lawyer in the Reagan administration Roberts wrote that the ruling ''seems indefensible."

First published on September 12, 2005 at 12:00 am
Michael McGough can be reached at mmcgough@nationalpress.com or 1-202-662-7025.
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