Fresh off their monumental decisions in June on affirmative action and gay rights, and after a summer break cut short by oral argument on campaign finance reform, the justices of the Supreme Court this week return to action in earnest. They find waiting for them a term that has its usual assortment of important, interesting, and evocative cases as well as a smattering of disputes that, well, let's just say you probably won't be hearing or caring much about when they get resolved.
Clearly, the headliner case of the term so far is McConnell v. FEC, the rambling dispute over whether the Bipartisan Campaign Reform Act, in whole or in part, is constitutional. Because their decision will necessarily affect the rules going into the 2004 presidential campaign, the justices came back one month early from fishing or sightseeing or writing or speaking or listening to show tunes or whatever else they do during their summer recess to hear nearly a day's worth of arguments in the case. They are expected to issue a decision, or perhaps a series of decisions, worthy of the thousands of pages of briefs thrown their way by all of the parties. Don't expect much clarity in this area when the decision comes down — and don't expect any side in the fight to be particularly pleased with the result.
The term's undercard has another case with important political ramifications. In Vieth v. Jubelirer, the Court will look at what state legislators can do when redistricting counties following a census, an issue that is ripe in Pennsylvania and soon will be in Texas and Colorado, where nasty redistricting fights have broken out and are just beginning to wend their way through the courts. The justices can stop those nascent disputes in their tracks with a clear ruling. An ambiguous ruling, or a ruling that limits the power of the courts to referee these disputes, might create gerrymandering chaos after next November's election.
The Court this term will perhaps further refine and define its landmark school voucher ruling a few years ago. In Locke v. Davey, the justices will decide whether Washington state's scholarship program must be available to theology students as well as those majoring in secular studies. A decision in favor of the students might encourage other states to direct public money to religion-based studies. A decision in favor of Washington might signal a limit on the Court's willingness to endorse vouchers. Last week, the Court also accepted for review another case, this one out of Arizona, which also focuses upon Establishment Clause issues as they relate to parochial schools.
Speaking of religion, perhaps the nation's best-known legal dispute — the fight over the constitutionality of the words "under God" in the Pledge of Allegiance — has not yet been formally recognized by the Court. We are still waiting to learn whether the justices will take the case and decide it on its merits. Last year, remember, the 9th U.S. Circuit Court of Appeals ruled that the two words violated the First Amendment's religious establishment clause. If the Court takes the case, the justices could declare the words "ceremonial deism" and simply overturn the lower appeals court. Or the justices could order the words stricken — after all, they weren't in the original pledge but added during the Cold War. Or the Court simply could permit the 9th Circuit ruling to stand. Stay tuned.
Another looming fight which the Court has not yet formally recognized involves the issue of whether Guantanamo Bay terror detainees are entitled to any constitutional rights. So far, the lower courts have answered that question with a resounding "no" but the justices may choose the two cases as vehicles to announce their post-9/11 positions on such matters. Likewise, the bitter battle over what rights terror suspect Zacarias Moussaoui is entitled to may reach the Supreme Court before this term is out. Finally, there are two "enemy combatant" cases involving Jose Padilla and Yaser Esam Hamdi, American citizens held indefinitely without charges, that cry out for Supreme Court attention. Will this be the term when the justices finally speak out on the merits of the government's war on terror? Again, stay tuned.
There are plenty of familiar topics on the docket this term. Several cases involving the Americans with Disabilities Act, always a popular choice for the chronically litigious, will be before the Court. There will be several bankruptcy cases as well, perhaps a sign of the economic times. Police power cases — involving the validity of searches and seizures, Miranda warnings, and custodial interrogations — litter the calendar. There are at least three Clean Air Act cases this term and an important case involving the Age Discrimination in Employment Act, in which the justices will look at whether that federal law prohibits "reverse" discrimination.
But the Court also will hear cases involving statutes you probably haven't heard of. For example, the justices will focus for a time on the Pittman Underground Water Act, the Tax Injunction Act, the Foreign Sovereign Immunities Act, the Equal Access to Justice Act, and the Indian Civil Rights Act as well as the "cramdown provision" of federal bankruptcy law. Since they will be together as a group for the tenth straight year, the justices undoubtedly will have to focus again on the usual parade of questions about looming resignations and retirements from the bench. And a term like this one just might make that scenario fairly appealing to one or more on the Court.
By Andrew Cohen