Justices return to light caseload Preparation: On the eve of the Supreme Court's term, the justices have decided to hear few cases, giving the chief justice time to oversee a possible impeachment trial.

Sun Journal

September 27, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court, after a summer away from the constitutional drama that is preoccupying the other two branches of the government, will become involved itself this week on the eve of a new term.

Starting tomorrow, the justices will add new cases to their docket for decisions over the next nine months, and among the first cases they will examine are two coming out of the White House sex scandal. The selection of new cases precedes the formal opening of the term Oct. 5.

And, out of public view, Chief Justice William H. Rehnquist will be doing some thinking, if not some actual preparations, for a historic role that could await him: presiding over a possible Senate impeachment trial of President Clinton.

Rehnquist is well-schooled on the subject: Six years ago, he wrote a book about impeachment, "Grand Inquests." If there is an impeachment trial, only Rehnquist will figure in it. The Constitution provides no role for the other justices or the court.

Last week, John G. Roberts Jr., a Washington lawyer who frequently appears before the court and is a former Rehnquist law clerk, remarked on the sparse docket the court has assigned itself for the new term. Pausing, he added: "If the chief justice has other duties to perform, he will have time for them."

So far, the court has agreed to decide only 32 disputes. If that pace continues, it would decide about 70 cases over the term, the lowest total in 44 years. Mark Tushnet, a contitutional law professor at Georgetown, noting last week "the thinness of the docket," said that it was "the product of the court's effort to lower its profile in American life."

The court's docket may get more interesting. A growing number of major cases is on the court's doorstep or soon to reach it -- including those related to the scandal surrounding Clinton.

Independent counsel Kenneth W. Starr has sent his findings about Clinton and Monica Lewinsky to Congress, with a suggestion that there is enough there to justify impeachment of the president. But three lingering disputes over the Starr investigation await the court's attention.

Two of those are on the opening list of cases the justices will consider this week, in private eve-of-term conferences.

One is a Secret Service appeal, urging the court to rule that the agents who guard the president should not have been required to testify before the grand jury about their observations of Clinton and should not have to do so in the future. The other is an appeal by a dozen media groups asking the justices to curb the lower courts' power to hold secret hearings on disputes such as those between Clinton and Starr about who can be subpoenaed to testify.

At this point, the only question the justices will ponder on these and other new appeals is whether to hear them. Even though the Starr report is in, the Secret Service and media access questions appear to be very much alive. Rehnquist has speculated publicly that the court will vote to hear the Secret Service case.

In coming weeks, the court will also decide whether to take up the third scandal-related case: a White House appeal contending that White House lawyers, including the deputy counsel, Bruce R. Lindsey, should not have been summoned before the grand jury -- and should not be called again -- for questioning about legal advice they gave Clinton.

Forcing White House lawyers to testify, the White House argues, could have the effect of limiting Clinton's ability to defend himself in impeachment proceedings. If Starr can invade attorney-client secrecy between Clinton and Lindsey, the argument goes, the president will be unable to rely upon Lindsey as a legal adviser if impeachment proceedings go forward.

While the court has been largely out of sight in recent months, it did take a brief look in June, near the end of its last term, at the running conflict between Clinton and Starr. The Secret Service and attorney-client cases had both reached the justices at an earlier stage, but the cases were sent back to the federal appeals court in Washington for review. Now, both are back. It will take the votes of only four of the nine justices to grant review.

Another case that the justices have seen before -- Paula Corbin Jones' sexual-misconduct lawsuit against Clinton -- may be returning, too, unless it is settled.

After the justices allowed her case in 1997 to go forward in a lower court, a decision that set the stage for the Lewinsky sex scandal to arise out of the Jones proceedings, Jones' case was dismissed by a federal judge.

But Jones is seeking to revive it in a federal appeals court and is relying on the Lewinsky affair to bolster her plea. The case could be back before the justices before the end of the new term,

although recent reports of settlement talks suggest that the lawsuit might be scuttled before the appeals court hears the case Oct. 20.

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