School voucher program tops high court's agenda

Affirmative action, disability on docket

October 01, 2001|By Thomas Healy | Thomas Healy,SUN NATIONAL STAFF

WASHINGTON - The Supreme Court term that begins today will almost certainly pale in comparison with the tumultuous events of last year, when the justices decided a presidential election for the first time in the nation's history.

But even without a case as monumental as Bush v. Gore, the next nine months in the life of the court could have a profound impact on many aspects of American politics, business and culture.

The justices have agreed to take on some of society's most difficult and divisive issues, including school vouchers, affirmative action, the death penalty and the regulation of pornography.

They will also decide many cases that, though less explosive, could have an effect on such everyday concerns as the price of a phone call and the rates for high-speed Internet service.

The term will also pose important questions about the Supreme Court as an institution.

After a year in which the justices risked their credibility to resolve the electoral dispute and decided a higher percentage of cases by a 5-4 margin than in any year in recent memory, court observers are waiting to see what, if any, fallout there will be.

Many observers had thought the justices would shy away from accepting cases that might deepen the rift between the conservative and liberal wings of the court. But for the most part, that has not happened, leading some to conclude that the justices are making a determined effort to put the last term behind them.

"I think they're almost consciously seeking to go about their business since Bush v. Gore," said Jesse Choper, a law professor at the University of California at Berkeley.

If Bush v. Gore does have lingering effects, some say, they might surface not in the types of cases the court decides to hear, but in the way it decides those cases it accepts. Instead of issuing broad rulings that "call the contending sides of a national controversy to end their national division" - as the court said in a 1992 abortion ruling - it might opt for narrow decisions that leave the hardest questions for another day.

"I think the aftermath of Bush v. Gore is likely to be a term in which the court doesn't make any landmark decisions," says Neal Devins, a law professor at the College of William & Mary. "There will probably be more incremental decisions this year."

The justices have placed 50 cases on their docket for the 2001-2002 term; they will probably add two dozen or three dozen during the coming months.

In what might be the highest-profile case of the term, the court has agreed to rule on the constitutionality of a school voucher program in Ohio that uses public funds to pay the tuition of thousands of children enrolled in religious schools.

This will be the first time the court has directly addressed whether such programs violate the First Amendment's prohibition on government-sponsored religion, and its decision could have implications for President Bush's proposal to funnel federal charity efforts through religious organizations.

In a second closely watched case, the court will re-enter the debate over affirmative action, addressing whether a federal program that gives preferences to racial minorities in highway construction contracts violates the equal protection clause of the 14th Amendment.

The case has been to the Supreme Court twice on preliminary legal questions, and each time the justices have sided with those challenging the program. But the justices have never addressed the core issue in the case, which is whether the program is constitutional. And unless they find a way around the issue this time, their ruling could resolve important questions about how far the government can go in redressing past discrimination.

The court also will return to another contentious issue - the execution of the mentally retarded. Twelve years ago, the court ruled 5-4 that executing mentally disabled murderers does not violate the Eighth Amendment's ban on cruel and unusual punishment.

But since then, 16 states have barred capital punishment for the mentally disabled, bringing to 30 the number of states that do not carry out such executions. As a result, the court has agreed to decide whether the Eighth Amendment, which is based on society's evolving standards of decency, now prohibits the practice.

Pornography regulation

Another issue making a return trip to the court is the regulation of pornography. The justices have accepted several cases that present important questions about how much protection the First Amendment provides for indecent speech. Two are likely to draw substantial attention.

The first involves a federal law that makes it illegal to post objectionable material on the World Wide Web without taking steps to prevent its access by minors. The justices struck down a similar law in 1997 on the grounds that it made pornography too difficult for adults to access.

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