Your Supreme Court At Work

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Attorney Andrew Cohen analyzes legal decisions for CBS News and CBSNews.com
If you are a death row inmate or death penalty opponent, it was a good Supreme Court term for you. If you are an employee at a company, it was not.

If you are an advocate of stronger states' rights and immunities, you are delighted with how the court dispensed its brand of justice over the past eight months. If you are in favor of a strong, high, solid wall between church and state, you are most decidedly not.

If you want less access to pornography online, you are probably frustrated with the court's lack of progress in that direction. If you want your local police to have more power to conduct searches and questioning of suspects, you have little reason to complain about the justices' work.

Another Supreme Court term has come and gone. And although some of the decisions it spawned were as divisive as they were definitive, we may actually look back upon the 2001-2002 term as the last of a relatively genteel era before the court became dominated by terror-law issues. Already, for example, the justices have agreed to hear next term a case about public access to immigration detention hearings and a case about whether the government may detain immigrants prior to their deportation. And the Yasser Esam Hamdi and Jose Padilla "enemy combatant" cases are likely on the way as well.

Compared to those looming whoppers, then, it's hard to get too geared up about the court's solid support for employers over employees in a slew of cases revolving around the Americans with Disabilities Act. The justices continued last term to narrow — or at least to refuse to expand — the scope of the ADA, ruling for example that the law does not require companies to hire people whose health may be jeopardized by the job they seek. Since the ADA is so poorly drafted, look for it to continue to draw the justices' attention in terms to come.

It's also difficult to get too jazzed about the various states' rights and immunities cases heard and resolved by the justices this term. These cases are crucially important, of course, but they aren't exactly flashy. The exception this term was a decision by the court that allows states to better protect the rights of patients during disputes with their health care providers. Now that a majority of justices have said that an Illinois law validly permits patients to get second opinions about coverage, look for many other states to pass similar legislation.

Look for many cities and states, too, to take a second or third or fourth look at school vouchers now that a slim majority of justices has ruled them to be constitutional, at least if they look like the voucher program in Cleveland, Ohio. The vouchers' ruling, issued on the last day of the term, clearly is a highlight — or lowlight — depending upon your political point of view of the court's recent work. It's one of only a few rulings people will be talking about years from now when they look back on the term.

It represents, in the fine words of The New York Times' Supreme Court correspondent Linda Greenhouse, a decades-long effort by Chief Justice William Rehnquist "to get the court to accept the concept that a government benefit offered neutrally to religious and secular institutions, with the money following choices made by private individuals, did not violate" the Establishment Clause of the first amendment. What it does, then, as President Bush proved Monday with his speech in Cleveland, is move the debate over vouchers from the legal to the political arena.

Also mixing between the legal and political arenas is the debate over the death penalty in America and on this issue the court's conservative tint wasn't nearly as profound as it was in other areas. The court declared unconstitutional the execution of mentally retarded capital defendants, which means that judges and lawyers now will fight mightily before and during and after trials about whether capital defendants are, in fact, mentally retarded. The court then dealt a huge blow to the prosecutors' lobby around the country when it all but gutted the movement to take death penalty decisions away from jurors (who apparently weren't recommending enough death sentences) and giving them to judges.

It's also likely that next term the court will be asked to decide whether the federal death penalty is unconstitutional under the due process clause of the 5th and 14th amendments now that a federal judge in New York has made that initial ruling. DNA testing and new academic studies into the inaccuracy of capital sentences are changing the legal landscape and the court is going to be asked over and over again in the next few years to referee disputes over what that landscape should look like.

And if you think the court is divided now over the system's ultimate punishment, wait until the justices have to rule on the constitutionality of the statute that added the words "under God" to the Pledge of Allegiance, yup it's possible that the high court will be asked to chime into that song and dance, too.

The justices also are likely in the next few terms to have to wade through the intersection of the law, technology and pornography. The justices last term refused to rule on the merits of the Child Online Protection Act of 1998 and sent it back to a trial judge for further review of the issues, like a boom-o-rang that case will return to the high court. By voiding the prohibition against "virtual" pornography, the court also told Congress to go back to the drawing board when it comes to the Child Pornography Prevention Act of 1996. Congress will, no doubt, and the justices again will be asked to render their verdict.

Now it is July and the justices have scattered in the wind, to fish or write or speak or to ride horses or just to rest. Perhaps the most candid thing that can be said about the court this term — and any term, if you really want to be cynical about it — was said a few weeks ago by Justice Antonin Scalia, who in an angry dissent in a death penalty case called judicial decision-making at the high court "a game, after all." If it is a game (and who I am to argue with a justice after all?) it is a game that's getting harder and harder to predict.
By Andrew Cohen
  • Brian Bernbaum

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