The judicial branch is almost always reactive rather than pro-active. Since judges generally review issues which others bring before them, it probably will be years and years before the new anti-terrorism measures being bandied about these days the ones already raising civil liberties concerns - come before the justices, if they ever do. In the meantime, the court will have to content itself with deciding dozens and dozens of fairly routine, if significant issues which will in one way or another affect all Americans.
The Court's new term brings with it a handful of front-page cases. The justices, for example, soon will let us know whether they intend to get involved now in the big fight between the federal and state governments and Microsoft.
If the Court decides to intervene in the case, it may greatly increase the chances that the company will be able to negotiate a favorable settlement. On the other hand, if the court - as expected - decides to pass on the issues until the trial court comes up with a new set of remedies, the Justice Department will be in the driver's seat as the process moves forward.
And just last week, the court announced that it would decide this term two very important cases, one involving the constitutionality of school vouchers and the other involving the constitutionality of executing mentally retarded killers.
In the school voucher case, the court decided to get involved to clear up confusion wrought by several lower court rulings across the country which were at odds over the validity of vouchers. By using taxpayer funds to permit parents to send their children to parochial schools, are vouchers a violation of the First Amendment doctrine ensuring the separation of church and state? Or are they a valid and neutral way of ensuring more choices for schooling. Hopefully, one way or the other, the court will clearly decide.
In the death penalty arena, the court has signaled its strong interest in strengthening limits on the execution of mentally retarded killers. Earlier this year, in order to address the issue, the justices had accepted a case involving a North Carolina man, Ernest McCarver, who was just hours away from being executed when the high court intervened.
In part because of that intervention, the North Carolina legislature passed a law precluding the execution of retarded people, which rendered moot McCarver's appeal. But the justices didn't want to let the opportunity to resolve the larger issue pass, so they have accepted two other similar cases.
Look for the vcourt to outlaw the practice nationwide. The court also is going to take look, in Kelly v. South Carolina, at the extent to which a judge must inform a jury in a capital sentencing case that the defendant will not receive parole if given a life sentence. That case, too, could have a significant impact on capital cases nationwide.
The court also is going to be busy this term exploring the intersection of the law and technology and the new age of telecommunications. In one case, the court will try to figure out just how far the Federal Communications Commission can go in treating wireless telecommunications providers the same as land-line telecommunications providers.
In another case, the court will resolve another in a long line of disputes between the Baby Bells and new entrants to the telecommunications industry. And it will tackle some of the tensions between the First Amendment and the Child Pornography Prevention Act and the Child Online Protection Act.
The Court also will decide whether a genetically engineered plant can be afforded patent protection under federal law. And it will come down on one side or another in an important fight between big electric companies and smaller electric companies, a ruling that could affect how we get our electricity and how much we pay for it.
In a more eclectic vein, the Court also will look again at the extent to which Native Americans can be exempted from certain federal taxes and whether a local government can place strict limits on permits for certain types of speech in public places.
There are a number of workplace cases that will come before the court this term. The justices will decide whether an employer can, by requiring an employee to sign an arbitration clause in an employment contract, prevent that employee from seeking help from the Equal Employment Opportunity Commission.
The court also will look at whether certain employers have taken advantage of the language of the Family and Medical Leave Act and also examine, in two separate cases, the Americans with Disabilities Act.
The justices also will be active on the criminal justice front. The court will look later this month at a case in which a capital defendant was not given a 19-hour continuance during his trial to try to track down three alibi witnesses who left the courtroom for lunch one day and didn't come back.
No single case clearly stands out this term as the most significant. The Supreme Court over the next few months will take a back seat to the new war on terrorism, in all of its forms. But even from the back seat, the justices will in many ways be a driving force in American society.
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