Major Supreme Court Decisions Due

CAROUSEL -- Political strategists Anita Dunn and Kevin Madden preview President Obama's State of the Union Address on "The Early Show" Wednesday, Jan. 27, 2010. CBS

The Supreme Court issues another round of decisions Monday, and may weigh in on a number of controversial cases still on the docket.

Before heading off for their summer break in a few weeks, CBSNews.com legal analyst Andrew Cohen reports, the Justices are expected to decide two cases involving the Miranda warning, three cases involving the application of the death penalty, three cases involving legal issues raised by the war against terrorism, and, of course, the case involving the challenge to the Pledge of Allegiance.

Among the war on terrorism cases are two concerning so-called "enemy combatants": Yaser Hamdi, captured on the battlefield in Afghanistan, and Jose Padilla, arrested in Chicago on suspicion of plotting a terrorist act.

Both are U.S. citizens. In both cases, the court is being asked whether constitutional protections against being locked up without trial apply in the war on terrorism.

Hamdi and Padilla have been locked up in solitary—with no charges filed— for most of the last two years. Their lawyers told the Supreme Court that even in war, you can't do that to American citizens, period, reports CBS News Correspondent Wyatt Andrews.

"We have never authorized the detention of a citizen in this country without giving him an opportunity to be heard. To say, 'Hey, I am an innocent person,'" Hamdi's attorney Frank Dunham said in arguments to the court.

But Bush administration attorney Paul Clement argued that a president as commander in chief has wide latitude under constitutional law to detain suspected terrorists as "enemy combatants" if they pose a national security risk.

"It has been well-established, and long established, that the government has the authority to hold unlawful enemy combatants … in order to prevent them from returning to the field of battle," he said.

The government is holding Hamdi and Padilla in near isolation at a Navy brig in South Carolina. Until recently neither had seen his lawyer or known that his case was before the Supreme Court.

In another case from the war on terrorism, regarding the detainees at Guantanamo Bay, Cuba, lawyers for the prisoners have asked: Can foreign-born prisoners picked up overseas and held outside U.S. borders use American courts to try win their freedom?

The Bush administration asserts that in war, the constitution gives the president broad powers. An attorney for detainees counters that the United States has created a "lawless enclave" at the military base in Cuba, where more than 600 men from 44 countries are being held without access to American courts.

Another key case involves a California atheist who objected to the phrase "under God" in the daily pledge recited in his 9-year-old daughter's classroom.

Michael Newdow sued her school and won, setting up the landmark appeal before a court that has repeatedly barred school-sponsored prayer from classrooms, playing fields and school ceremonies.

The Supreme Court has already said that schoolchildren cannot be required to recite the oath that begins, "I pledge allegiance to the flag of the United States of America." The question put to the Supreme Court now is: Does the use of the pledge in public schools violate the Constitution's ban on government established religion?

The First Amendment guarantees that government will not "establish" religion, wording that has come to mean a general ban on overt government sponsorship of religion in public schools and elsewhere.

God was not part of the original pledge written in 1892. Congress inserted it in 1954, after lobbying by religious leaders during the Cold War. Since then, it has become a familiar part of life for a generation of students.

A 9th U.S. Circuit Court of Appeals panel decided in June 2002 by a 2-1 margin that Newdow's daughter should not be subjected to the words "under God."

The court said the phrase was an endorsement of God, and the Constitution forbids public schools or other governmental entities from endorsing religion.

A national uproar followed the ruling. President Bush and Congress immediately condemned the decision. The full appeals court in February rejected the Bush administration's request to reconsider its decision. That set up the move to the Supreme Court.

In its legal filings so far, the Bush administration has argued that the reference to God in the pledge is more about ceremony and history than about religion.

The reference is an "official acknowledgment of our nation's religious heritage," similar to the "In God We Trust" stamped on coins and bills, Solicitor general Theodore Olson told the court. It is far-fetched to say such references post a real danger of imposing state-sponsored religion, Olson wrote.

The Court is also to weigh in on a nearly three-year fight over access to records of Vice President Dick Cheney's work on a national energy strategy.

The White House is framing the case as a major test of executive power, arguing that the forced disclosure of confidential records intrudes on a president's power to get truthful advice. Environmental and other interest groups claim the records will show whether the energy industry got special access or favors.

The legal issues in the case have been almost overshadowed by a political controversy involving Justice Antonin Scalia. He has refused to step down despite a controversy over a hunting trip he took with Cheney, an old friend, weeks after the high court agreed to hear Cheney's appeal.
  • Jarrett Murphy

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