SUPREME COURT PREVIEW

	October 1, 2001
	Gwen Ifill discusses the Supreme Court's new session with Marcia Coyle, Washington bureau chief for the National Law Journal.

GWEN IFILL: The Supreme Court comes back into session at a time when the nation is newly mindful of the protections and limitations of the laws, which govern us. Joining us for a preview of the high court's docket is Marcia Coyle, Supreme Court correspondent and Washington bureau chief for the "National Law Journal." Welcome back, Marcia. MARCIA COYLE: Thank you, Gwen. GWEN IFILL: Big issues facing the Supreme Court this year. Let's start with one of the key ones which is this division between church and state which we keep revisiting. MARCIA COYLE: Right. The Supreme Court is now right in the middle of an ongoing political, legal and education debate over school voucher programs. The court took a case from Ohio, Ohio created a tuition scholarship program for the parents of Cleveland students. Under that program, Ohio gives the parents roughly $2500 to be used towards tuition at private, religious or suburban Cleveland public schools. A lower court found the program was unconstitutional. In the end about 90% of the students who were using the funds were going to religious schools. About 80% of the schools participating in the program were religious schools. The lower court felt this is really subsidization of religious schools. It violates the First Amendment's ban against government establishment of religion. GWEN IFILL: The court has to figure that out. Another big issue that we see repeatedly: Death penalty. MARCIA COYLE: This is very interesting. The court in 1989 in a split decision ruled that it was not unconstitutional to execute a mentally retarded person. The court this term has taken a case out of Virginia in which it will face that exact question again. The difference is in 1989 there were only two states that had laws on the books prohibiting the execution of those persons. Today we have 18 out of 38 states that have capital punishment laws banning the execution of the retarded. The question for the court is, are 18 states enough? Is that evidence of a national consensus against the execution of the mentally retarded? In this case as well as in the school voucher case, keep your eye on Justice O'Connor. She is very much the swing vote. She wrote the 1989 opinion saying it was constitutional to execute the mentally retarded. GWEN IFILL: It also seems that throughout the session last year we kept looking for the court to take up key cases on affirmative action. It looks like this may be the time. MARCIA COYLE: That's right. I think last term we were looking towards challenges involving affirmative action in university admissions programs. But what the court has taken this term is the case that it faced in 1995, and at the time it was a rather landmark decision. The court said that federal affirmative action programs had to pass the Constitution's most searching test in order to be constitutional. This case... This involved the federal transportation program in which the federal government's trying to encourage highway contractors to hire minority and disadvantaged business enterprises as subcontractors. The case has been reformed considerably by Congress; a lower court felt that it was constitutional this time. It's back at the Supreme Court to see if it is narrowly tailored under the court's strict scrutiny test. GWEN IFILL: Does that mean we won't see action on the university cases? MARCIA COYLE: I think it's unlikely that we will see it this term. There's one case out of Georgia involving the University of Georgia that might have a petition filed soon, but I think it won't be in time for this particular term. I think maybe next term. And again I think that is still going to be the area where the court will maybe make a major pronouncement about affirmative action. This particular case this term - Adarand -- has a lot of problems and it may not be the vehicle for that. GWEN IFILL: The court is also being asked to take up yet another piece of congressionally mandated legislation which people keep taking whacks at, that's the Americans With Disabilities Act. MARCIA COYLE: That Act has been around since 1990. It's now providing a stead stream of cases to the Supreme Court as the lower courts try to work out problems with the definition of disability and what a reasonable accommodation means that an employer has to make a reasonable accommodation to a disabled person. And the court has two cases this term under both those headings. It has one case involving an assembly line worker at a Toyota auto plant. She has carpal tunnel syndrome. She wanted to be in a job that didn't aggravate that disability. Toyota apparently would not put her in that kind of a job. She sued. The question for the court is, is she disabled? Does she fall under the ADA's definition of disability? She is disabled in terms of particular jobs but if Toyota can still find work for her, is she truly disabled? GWEN IFILL: Now one of the things we were also surprised to see moving across the wires today was the headline President Clinton disbarred. Could you explain to us what the court actually did? MARCIA COYLE: This is a rather routine action. When any lawyer is disbarred, the state in which he was disbarred, the state court or the state bar association, notifies the Supreme Court as a routine matter that this lawyer has been disbarred. The Supreme Court then routinely issues an order saying you are suspended but we're going to give you 40 days to answer why we should not disbar you as well. It sort of makes sense. If a lawyer is disbarred in Pennsylvania and can't practice in Pennsylvania courts, why should he practice before the Supreme Court? GWEN IFILL: He was disbarred as part of his plea agreement before he left office. MARCIA COYLE: Yes, he was. He agreed in order to end the Whitewater investigation, the Monica Lewinsky portion, President Clinton agreed to have his license suspended for three years and to pay... Or five years and to pay a fine. Now, he can reapply for admission at the end of those five years. If he's in good standing with the Arkansas Bar for three years, he can reapply to the Supreme Court. GWEN IFILL: This is specifically about practicing or appearing before the Supreme Court. MARCIA COYLE: That's correct. Just the Supreme Court. GWEN IFILL: Were we expecting to see Bill Clinton arguing a case in front of the Supreme Court? MARCIA COYLE: Not many lawyers get that opportunity in their careers. GWEN IFILL: Today at the court, we've had debates here on this program about the different issues which are being affected by the September 11th advance including civil liberties questions. Does the Supreme Court have a role? Are they beginning to think about this? Was that reflected in any way in today's opening proceedings? MARCIA COYLE: I think certainly the events of September 11 were reflected in the opening proceedings. We had a very stark and poignant reminder in the presence of the Solicitor General, Ted Olson. His wife, as you recall, was killed in the plane that struck the Pentagon. The court, the Chief Justice right off the bat offered his condolences to Mr. Olson and then he also called for a moment of silence to recognize the loss of other lives as well as the bravery in the aftermath of those attacks. So I think the Court, yes, is very aware of this. Whether it will actually play a role, it's still too early to tell. If it has a role, it might be in any anti-terrorism legislation that eventually emerges from Congress -- if there are proposals-- and I think mainly of the immigration provisions.... GWEN IFILL: Wasn't there a provision last year in which they said you could not hold immigrants, I mean, without charging them indefinitely? MARCIA COYLE: Yes. The Supreme Court made it clear last term that the power of the government to hold an immigrant, even one who has been ordered deported is not limitless and it's not unreviewable by a court. So that sort of issue may come again to the Supreme Court. GWEN IFILL: It doesn't sound so different from what John Ashcroft was asking for. MARCIA COYLE: No it doesn't. The question is could it get to the Supreme Court this term? It takes a while for litigation to move up. On the other hand, there may be emergency requests for injunctions from groups that feel that civil liberties are being violated and the court could be drawn into that. Let me add that history teaches us that the Supreme Court is very deferential to the executive branch in times of war or national emergencies. And that may indeed color how the court looks at some of these laws that come into being. GWEN IFILL: In fact hasn't Justice Rehnquist at least written to that point? MARCIA COYLE: Yes he has in a book that he had come out recently, he made that point that while the court may be immediately deferential, it may years down the road come back and say, well, this particular law, while it was okay at the time, went too far and now we have problems with it. GWEN IFILL: Marcia Coyle, thanks a lot. MARCIA COYLE: My pleasure.