As Justices Reconvene, Key Issues Are Awaiting As Justices Reconvene, Key Issues Are Awaiting
Court Might Review McCain-Feingold, Affirmative Action
By Charles Lane
Washington Post Staff Writer
washingtonpost.com
Sunday, October 6, 2002; Page A08
The Supreme Court term that begins tomorrow already promises to produce rulings on a series of high-profile issues -- but what really has court-watchers excited is the prospect that the justices may choose to hear several potentially history-making cases still working their way up from the lower courts. Affirmative action, campaign finance reform, terrorism, Internet access at libraries and gay rights top the list of pending issues.
Legal analysts expect the justices to rule on at least some by spring. In the meantime, the court has agreed to hear 45 cases of an expected 80 or so for the full term. Among these are challenges to Virginia's ban on cross-burning, California's "three strikes" criminal sentencing law and Maine's law designed to pressure drug makers into providing cheaper medicines. "This is a great term already, but it's the cases that are coming that will make it a blockbuster," said Tom Goldstein, a Washington attorney who specializes in arguing cases at the court.
The affirmative action cases are potentially the most explosive. They arise out of white students' assertions that efforts by the University of Michigan's undergraduate program and law school to admit more minorities are unconstitutional "reverse discrimination." In effect, the students and their attorneys from the Center for Individual Rights, the Washington-based conservative public interest law firm, are seeking to undo the Supreme Court's 1978 ruling in the Bakke case. While ambiguous, that case has been widely interpreted as permitting race-conscious admissions to achieve diversity. If they succeed, public universities around the country would have to revamp admissions policies.
On May 14, the Cincinnati-based U.S. Court of Appeals for the 6th Circuit upheld the Michigan law school's admissions policy; it has yet to rule on the undergraduate case, even though it heard oral arguments in the two matters on the same day 10 months ago. The white students have appealed the law school ruling to the Supreme Court and recently asked the justices to intervene in the undergraduate case even before the 6th Circuit rules. While that would be an extraordinary step, legal analysts say the court is likely to wade into the controversy.
The Bipartisan Campaign Reform Act, better known as the McCain-Feingold law, is under attack from a variety of interest groups, labor unions, corporations and politicians -- led by the bill's chief Senate foe, Mitch McConnell (R-Ky.) -- all of whom say the law's limits on soft money donations and issue ads infringe upon freedom of speech. Because of the anticipated constitutional challenges, the law included a provision for expedited review by the courts, and the case is scheduled to be heard by a three-judge panel of the U.S. District Court in Washington in early December.
That court's decision can -- and almost certainly will -- be appealed directly to the Supreme Court. The litigants and the district court have "an active expectation" that the Supreme Court will dispose of the case this term, said Joel Gora, associate dean of Brooklyn Law School, who is representing the American Civil Liberties Union, which opposes the law. "The 2004 elections actively begin in early 2003, so the earlier we can have a decision . . . the sooner everyone can know what the rules are," Gora said. And the justices may get a chance to weigh in for the first time on the Bush administration's tactics in the war on terrorism.
The Justice Department has ordered immigration judges to keep the press and public out of deportation hearings for illegal aliens it considers of "special interest" to its terrorism investigation. But this policy was challenged in separate lawsuits brought by Michigan and New Jersey newspapers, and two federal district courts have ruled that the government may close hearings only when it can show, case by case, that opening them would harm government intelligence-gathering. The 6th Circuit, in a strongly worded opinion, rejected the Bush administration's appeal. Another appeal by the government is pending in the U.S. Court of Appeals for the 3rd Circuit.
The Supreme Court, responding to a plea from Solicitor General Theodore B. Olson, has permitted the policy to continue in effect in the meantime. Additionally, Olson is asking the court to uphold the Children's Internet Protection Act, a 1999 law that bars federal Internet aid to public libraries unless they use filtering devices on their computers to screen out "obscene" material, child pornography and material that is "harmful to minors."
Libraries say the law violates freedom of speech; last June, a three-judge district court panel struck the law down. Olson argues that the lower court's decision "frustrates" Congress's effort to prevent access to "the enormous amount of illegal and harmful pornography on the Internet." The gay rights case involves a challenge by a Texas couple to that state's sodomy law, which criminalizes oral and anal sex between homosexuals, but not heterosexuals. The men want the court to overrule its 1986 decision permitting such anti-sodomy laws.
The court's lineup, having remained the same since Justice Stephen G. Breyer joined the court in 1994, is now the longest-serving group since the 1820s. The court's docket for this term reflects long-standing interests of this well-entrenched group. "This is a term where the court is revisiting a huge number of issues," said Pamela S. Karlan, a professor of law at Stanford University.
One of those issues is freedom of speech. Three men who have been convicted under a Virginia law that prohibits intentionally intimidating anyone by burning a cross in a public place, or on someone else's property, are challenging the 50-year-old statute, saying that it deprives them of their right to free symbolic political expression. State officials say cross-burnings are "hate speech," closer to political violence than to political advocacy. The case gives the court an opportunity to refine the rules on cross-burning it set in 1994, when it struck down a differently worded Minnesota ban. Virginia's statute is similar to laws in three other states.
Taking up the question of cruel and unusual punishment, which it addressed in last year's decision striking down capital punishment for mentally retarded criminals, the court will decide whether California's law imposing sentences of 25 years to life on criminals who are convicted of a felony for the third time runs afoul of the Constitution. At issue are the sentences handed to two repeat offenders, drug addicts who financed their habits through burglaries and petty thefts.
Opponents say that their prison terms are disproportionate to their nonviolent offenses -- and that they are typical of some 300 other petty offenders languishing for life behind bars in California under the most draconian "three strikes" statute in the country. Advocates of the law, which was passed in response to the 1993 kidnapping and murder of Polly Klaas by a repeat offender who was on parole, say it has helped reduce crime in the state in recent years.
And in a case that calls upon the justices to address once again state power relative to the federal government -- as well as the soaring cost of medicine -- the court will hear the pharmaceutical industry's challenge to a Maine program that uses the state's leverage as a mass purchaser of prescription medications under the federal Medicaid program to encourage drug companies to sell their products at a discount to all Maine citizens. The Boston-based U.S. Court of Appeals for the 1st Circuit upheld the plan.
But the companies say the Maine law, known as Maine Rx, has an impact on wholesale transactions that take place largely outside of Maine, thus violating the constitutional provision that gives the federal government exclusive power to regulate interstate commerce. They also say it misuses Medicaid, a federal program for the poor, to aid many people who are not poor.
The court has agreed to hear the case over the objections of the Bush administration, which had said that it was premature to rule on the program, which has not yet been put into effect because of litigation. Since then, the Bush administration has submitted a brief contending that Maine Rx violates the Medicaid statute, but that more limited state drug-discount programs might be allowable. Also, the court will decide whether state sovereign immunity bars state employees from suing their bosses for damages for denying them time off under the 1993 Family and Medical Leave Act. In recent years, the justices have invoked sovereign immunity to shield the states from suit under such federal statutes as the Fair Labor Standards Act and the Americans with Disabilities Act.
Additionally, the court will consider challenges to two states' "Megan's laws" -- statutes named for a New Jersey girl who was raped and killed by a sex offender living in her neighborhood. The laws require convicted sex offenders to register with authorities so people can keep tabs on them. In one case, from Connecticut, the justices will decide whether the constitutional guarantee of due process requires giving offenders a hearing before their personal data are posted on a state Web site. In a case from Alaska, the question is whether the Constitution permits the state to publish information about offenders who were convicted before the passage of that state's Megan's law and have already served their sentences.
The court will consider a challenge to the 1998 Sonny Bono Act, named for the late pop singer, which extended existing copyrights on films, books and music from 50 years after the death of the work's creator to 70 years. The law was a tremendous boon to the Walt Disney Co., whose copyrights on such characters as Mickey Mouse are set to expire over the next few years. But small publishers and others who specialize in distributing works with expired copyrights say the law stifles the free flow of ideas.
And the court will decide whether lower courts properly used a law aimed at organized crime to stop a national network of protesters who tried to block access to abortion clinics by forming human chains, lying down in front of entering patients and, sometimes, assaulting people or damaging property.
© 2002 The Washington Post Company
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