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Supreme Court Preview

October 7, 2002 at 12:00 AM EDT
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GWEN IFILL: The Supreme Court returning to session today is one of the most stable in years, together as a group since 1994. This term the nine justices are poised to make history in a number of pivotal and high-profile cases touching on elections law, state’s rights, affirmative action, civil liberties, and free speech in cases from states throughout the union.

Here to take us on a tour on this first Monday in October is NewsHour regular Jan Crawford Greenburg, who covers the Supreme Court for the Chicago Tribune. Jan, let’s just start off by talking about the terrorism cases, there are at least not at the Court yet but potentially coming to the Court some post-9/11 cases.

JAN CRAWFORD GREENBURG: Well, that’s right, and there’s no question that the Supreme Court this term will be asked to decide how to balance security on the one hand with concern for civil liberties on the other. One case that I expect the Court to be asked to review this term involves the Bush Administration policy of closing deportation hearings for hundreds of immigrants who are detained in the wake of the September 11 attacks. Two different federal appeals courts have taken up that issue, one has ruled that it’s unconstitutional, another — the decision now is pending. So that’s one I think the court will take up this term.

Another September 11 case that had a balance again, the government’s concerns with combating terrorism against concerns for civil liberties involves the holding of American citizens who are designated as enemy combatants who can be held in military custody without consulting a lawyer or being charged with a crime.

GWEN IFILL: Another old reliable constitutional matter for the Court is the matter of free speech — this time on cases as disparate as cross burning and campaign finance reform.

JAN CRAWFORD GREENBURG: Right. Now the Court has already announced that it will hear a challenge involving a Virginia law that made it a crime to burn a cross with the intent to intimidate someone. The Virginia Supreme Court struck down that 50-year-old Virginia state law ruling that it violated the First Amendment, that it infringed on free speech. A man had challenged that law after burning a cross at a clan rally and being convicted for violating that law. So the Court will take that decision up.

Now the campaign finance reform case is still in the area of the terrorism cases. The Court hasn’t announced it will review it, but many observers believe that will get to the Court this term as well, it involves a First Amendment challenge to the Bipartisan Campaign Reform Act, McCain-Feingold as it’s known, and that’s under First Amendment attack as well.

GWEN IFILL: Let’s hop around the country to some of the other big cases, in California it’s the three strikes law.

JAN CRAWFORD GREENBURG: Right. Courts wading into the area of sentencing and criminal sentencing will look at whether or not California’s controversial three strikes law, which would impose lengthy prison sentences, sometimes life in prison for such crimes as in the case before the court of stealing three golf clubs from a pro shop, or in another case before the Court, a man who walked out of two K-mart stores with nine videotapes. Those two defendants have argued that the California three strikes law violates the Constitution’s 8th Amendment– and that prohibits cruel and unusual punishment.

GWEN IFILL: And last, in Connecticut, there are copycat laws of Megan’s Law, the New Jersey law.

JAN CRAWFORD GREENBURG: Right. All 50 states have Megan’s laws, which, as you know, are named after the seven-year-old New Jersey girl who was raped and killed by a neighbor, who unbeknownst to Megan’s parents was a convicted sex offender. All states have passed these laws requiring convicted sex offenders to register, and then the community can be notified if they’ve moved into the neighborhoods.

The Alaska law is a challenge by defendant who committed the crime before this sex offender law– notification law took effect. He said it’s therefore unconstitutional to make him be part of the registry. The Connecticut challenge is a slightly different challenge to its Megan’s law, a man there is arguing that Connecticut — like 20 other states that have similar laws — must give some indication that he’s at risk for committing crimes in the future.

GWEN IFILL: In Kentucky the court is being asked to consider a case involving health maintenance organizations, HMOs?

JAN CRAWFORD GREENBURG: That’s right. And whether or not a state law there that allows patients, and requires HMOs to allow patients to consult with a doctor of their choice, whether that law is pre-empted by a federal law, the HMOs argue that it is pre-empted by a federal law so, the court will weigh back into state efforts to regulate managed care.

GWEN IFILL: Also kind of on a health related issue, in Nevada there’s a challenge to the family medical leave law, whether states can be held responsible for enforcing a federal statute?

JAN CRAWFORD GREENBURG: Well, that’s right. And this gets us back into a slightly different area that has captivated this Court in recent terms and whether or not Congress can essentially bend states to its will. This case involves the Family Medical Leave Act and whether or not Congress can make states subject to lawsuits by state employees under that law.

Obviously, Nevada is arguing that it should not be subject to lawsuits under the Family Medical Leave Act. And the Court has been sensitive and sympathetic to arguments in previous terms that have been made by other states involving different statutes, age discrimination, disability discrimination, so this one will be an important case to see if the Court is going to go that next step.

GWEN IFILL: In Maine, the Court is being asked to take up an issue, which Congress hasn’t quite gotten to and that’s making prescription drugs affordable?

JAN CRAWFORD GREENBURG: That’s right, and this is like the managed care case from Kentucky, states stepping into areas where Congress hasn’t yet acted. Maine officials are trying to make and lower the cost of prescription drugs, but the drug manufacturers argue in their challenge to this law that essentially the state is forcing them to rebate the cost of these drugs to make them affordable to consumers who are not covered by Medicaid. They argue that that violates the Constitution as well as the federal Medicaid law.

GWEN IFILL: There’s a big case, which the court has not decided to take, in fact, it hasn’t even come to them yet, affirmative action involving the University of Michigan Law School admissions there? Is that, that is also kind of looming, isn’t it?

JAN CRAWFORD GREENBURG: That case I think could define the term, and I think the Court is highly likely to take up that case. Already the Court has got the papers in that case and it is now going to decide whether or not it wants to get involved. It involves the use of race in university admissions policies and in specifically the University of Michigan’s Law School admissions policy.

A federal appeals court in Cincinnati upheld that policy, and it agreed with the university’s argument that it could use race as one of a number of factors in considering potential applicants, because it was an important interest to consider and have a diverse student body.

Now that decision is in direct conflict with another ruling in 1996 by a New Orleans federal appeals court. That federal appeals court struck down the University of Texas Law School’s use of race in admissions policy. So we have two competing decisions, and the issue is now before the court and it will announce in months to come whether it will get involved in that issue.

GWEN IFILL: And it’s those two competing issues, which make it right for the Supreme Court –

JAN CRAWFORD GREENBURG: That’s one thing that they certainly look to in deciding whether or not to take up a case. And this is an issue this has caused great confusion in the lower courts and one where certainly Supreme Court guidance is needed.

GWEN IFILL: Today the Court actually by not taking action took action, which is they decided not to take up a New Jersey case involving the replacement of Senator Bob Torricelli on the ballot, which has conjured up all kinds of echoes of the year 2000 in the Bush v. Gore. I don’t want to ask you if you expected the Court to take it because of course you can’t read those minds.

JAN CRAWFORD GREENBURG: You can’t and certainly the Court like anyone else is capable of surprising us. But I don’t think anyone, I can’t name any court watchers who thought that the justices would get involved in this case. For one thing the stakes weren’t quite as high, it wasn’t a contested presidential election, and I think, more importantly, many court watchers cannot emphasize enough that Bush versus Gore is a decision that the Justices have put behind them and they would like it to stay there.

They found that decision to be highly divisive on the Court, they expended an enormous amount of institutional integrity on that decision. And while the Republicans in the Torricelli case had argued that Bush versus Gore had to pave the way for the challenge in this case, it didn’t seem to many observers that the Court was really wanting to go down that road.

GWEN IFILL: So that’s the end of the legal line for Republican challengers?

JAN CRAWFORD GREENBURG: In this case it is, right.

GWEN IFILL: Okay, one final thing: Every time the Court begins the session, we always look and we talked about how stable this court has been. Everybody begins to think, well, who’s the next retirement, what’s the next big shakeup in the Court. Were there any kinds of hints from inside the chamber today?

JAN CRAWFORD GREENBURG: It’s funny you ask that because normally we have no indication, and that’s one of the things that one of the most closely held secrets in Washington, one of the few surprises that we ever get. So of course today we’re in the courtroom, first Monday of October, it’s exciting, you’re back to business, and the Chief Justice announces it’s the start of a new term, and then he said, I would also like the Court to note today the retirement of Chief Justice…and people literally, you know, there was almost a gasp among the press corps and court personnel, and then he stopped and corrected himself and said, a chief deputy clerk, Frank Larson, who has been a long-time almost a fixture at the Court who retired after more than 30 years. But whether or not that’s a Freudian slip, your guess is as good as mine.

GWEN IFILL: Is the Chief Justice trying to tell us something?

JAN CRAWFORD GREENBURG: Well, he’s certainly one that people have long at least for the last couple of terms — said may be at the top of the list for retirement. And as historic as I think this term has the potential to be, with all the cases that we’ve just talked about, if the Chief Justice announces his retirement next spring, it will ratchet it up even further.

GWEN IFILL: Okay, well, we’ll be talking about this very interesting year to come. Jan Crawford Greenburg, thank you very much for joining us.

JAN CRAWFORD GREENBURG: You’re welcome.