A new Supreme Court term begins Monday amid a
political and emotional climate far different from what the justices
might have anticipated only a few weeks ago.
Returning to work after a term in which the
court placed itself at the center of American political debate by
opting to decide the disputed presidential election, the justices
seem, for now, very much on the sidelines during a foreign policy
crisis, the handling of which the Constitution assigns mostly to the
president and to Congress.
In the public mind, the awful human toll of the
terrorist attacks in New York and Washington on Sept. 11, and the
likelihood of an American military response, overshadow the
contentious issues that make up the court's current docket. This is
especially true now, since the justices are not yet scheduled to
consider any cases that might directly relate to legal issues raised
by the attacks, such as the Bush administration's effort to win new
wiretapping authority for federal law enforcement.
"September 11th made us feel much more
mortal and more vulnerable, so the stakes in the court term don't
seem quite as great," said Stephen Wermiel, associate professor
of law at American University's Washington College of Law. "Not
that they will be any less hard fought at the court, but maybe lots
of things in our lives have been put in a different perspective."
Nevertheless, the court's agenda includes cases
that, as the country slowly returns to normalcy, are likely to
rekindle long-standing but intense policy debates.
The justices will decide whether public funds
may be spent to educate children at church-run schools, whether
mentally retarded persons may be subject to capital punishment, and
how far the federal government may go in controlling Internet speech
to protect children from pornography.
They will also define the scope of an
anti-discrimination law protecting people with disabilities, and
revisit the question of affirmative action in federal contracting.
The school aid case will determine whether Ohio
violated the Constitution's ban on "establishment of religion"
when it authorized the city of Cleveland to grant $2,250 in tuition
money to parents who want to send their children to private,
parochial or suburban public schools rather than to Cleveland's own
public schools.
Such "voucher" programs have been
advocated by free-market critics of public schools, on the grounds
that only well-financed competition can force the public schools to
improve. They have been opposed by teacher unions, school
administrators and civil libertarians, who argue that state aid to
church-run schools would amount to requiring taxpayers to support
religions they may not agree with, and that such programs would
subject cash-poor public schools to ruinous, rather than healthy,
competition.
In recent years, the court has gradually moved
in the direction of greater support for state aid to some religious
schools, as long as the funding does not favor one particular
religion and is distributed through third parties who exercise some
measure of control over where the money actually goes.
If the court upholds the Cleveland plan, it
could reenergize a pro-voucher movement that stalled in recent years
in the face of intense political opposition from teacher unions and
others -- and indifference from middle-class suburban voters who are
generally happier with the public schools than inner-city parents.
"This is a terribly important case from the
standpoint of parents and families, and of course it has great
political significance because President Bush campaigned on it and
to some degree backed off the issue since becoming president,"
says Douglas Kmiec, a former Reagan administration Justice
Department official who is dean of Catholic University's law school.
"Whether he comes back to it could depend on what the court
signals."
There are three consolidated cases involved:
Zelman v. Simmons-Harris, No. 00-1751; Hanna Perkins School v.
Simmons-Harris, No. 00-1777, and Taylor v. Simmons-Harris, No.
00-1779.
The death penalty case, Atkins v. Virginia, No.
00-8452, presents the court with the opportunity to reassess its
1989 ruling that executing mentally retarded murderers does not
necessarily violate the Constitution's prohibition on "cruel
and unusual" punishment.
When the justices decided that case, only two
states that permit capital punishment had laws against executing the
retarded, insufficient evidence, a five-member majority of the court
said, of a "national consensus" against the practice.
In the interim, some 16 additional death penalty
states and the federal government have banned executions of the
retarded, usually defined as persons with IQs of 70 or below.
Activists who oppose the death penalty are optimistic that Justice
Sandra Day O'Connor, the perennial swing voter who wrote the 5 to 4
ruling in 1989, will switch sides this time.
The justices will tackle the question of child
pornography on the Internet in Ashcroft v. Free Speech Coalition,
No. 00-795. The court will have to determine whether Congress
violated the First Amendment guarantee of free speech when it passed
a 1996 law making it a federal offense to post on the Internet
computer-generated sexual images of children.
A coalition of photographers, moviemakers and
producers of "adult" materials challenged the law, arguing
that it was vague and that only pictures of actual children can be
banned because only they do harm to children.
While a lower federal court sided with the Free
Speech Coalition, the Justice Department appealed to the Supreme
Court, arguing that even fictitious images of children having sex
help to feed the overall market for child pornography, and that
prosecutors would find it difficult to prove that any image was of
an actual child, as opposed to a computer-generated one.
A separate case, Ashcroft v. ACLU, No. 00-1293,
involves a different statute designed to protect children from
seeing sexually explicit material on the World Wide Web. Passed in
1998 after the court struck down a more broadly worded version in
1997, the statute says "commercial" Web sites may not post
material that is "harmful to minors" as defined by "contemporary
community standards."
The ACLU says the law would give the most
conservative communities a veto over the content of the Web, to the
detriment of adult users of legitimate purveyors of sexual
information, such as AIDS support groups. The government notes that
any sexually explicit Web site could avoid violating the law by
requiring users to provide a credit card number or other proof that
they are over 18.
Two disability-law cases present the court with
an opportunity to influence enforcement of the Americans With
Disabilities Act, the federal statute that has prompted thousands of
lawsuits to protect the rights of disabled Americans since its
enactment in 1990.
One case, US Airways v. Barnett, No. 00-1250,
presents the question of whether employers must accommodate a
disabled employee by finding him or her a new job, even when that
might mean displacing another non-disabled employee who would be
entitled to the post under a company seniority plan.
In a second case, Toyota v. Williams, No.
00-1089, the justices will have to decide what sort of physical
impairment qualifies as a disability under the ADA. An assembly-line
worker, who, like large numbers of other Americans, has carpal
tunnel syndrome, a nerve and muscle condition often caused by
repetitive manual labor, was able to do certain jobs at a Toyota
plant in Kentucky, but not others.
The worker said she couldn't perform a new job
assignment, and was subsequently dismissed by the company, which
contends that the ADA was intended to protect people's right to work
generally, rather than to work at a particular job.
The affirmative action case, Adarand
Constructors v. Mineta, No. 00-730, is a near-repeat of a case that
the court has ruled on once before. In 1995, the justices struck
down a U.S. Department of Transportation program that sought to
steer federal highway construction contracts to minority-owned and
other "disadvantaged" businesses. By 5 to 4, the justices
said that such racial classifications would have to survive "strict
scrutiny" by the courts.
The Clinton administration revised the plan to
make it less overtly race-conscious.
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