On the docket: church-state case, political battles

The Supreme Court's new term, starting Monday, could be historic if it takes a Pledge of Allegiance dispute.

Eleven years ago, the US Supreme Court struck down as unconstitutional the offering of a prayer at public high school graduation ceremonies. At the time, Justice Antonin Scalia complained in a dissent that the majority's reasoning could render the Pledge of Allegiance vulnerable to similar attack as an impermissible establishment of religion under the First Amendment.

"Since the Pledge of Allegiance has been revised ... to include the phrase 'under God,' recital of the Pledge would appear to raise the same establishment clause issue as the invocation and benediction [struck down in the graduation case]," Justice Scalia wrote in 1992. "Must the Pledge therefore be barred from the public schools?"

Now, more than a decade later, Scalia's question is at the heart of a case that could immediately elevate the Supreme Court's current term, which begins Monday, into a historic session.

The court has not yet said whether it will take up a California case challenging the constitutionality of the Pledge in public schools. But an announcement could come as early as Monday.

"If the court takes [the Pledge case] on the merits, it will dwarf anything else the Supreme Court will do this year," says Steven Shapiro, legal director of the American Civil Liberties Union.

As the nation's highest court begins its new term, legal analysts say the court's docket already includes a number of potentially important cases. Among them are disputes that could reshape how American elections are financed, how election-district boundary lines are drawn, and how criminal suspects are interrogated.

Legal scholars will be watching to see if the court's conservative wing continues to push its federalism revolution by aggressively policing the balance of power between states and the national government. They will also pay careful attention to how the justices respond to alleged violations of civil liberties in the war on terrorism.

Despite the potential for blockbuster cases dealing with the Pledge of Allegiance or terrorism, at least so far, legal analysts say, there are no mega-cases on the court's docket that might rise to the level of last year's landmark affirmative-action and gay rights decisions.

"This is looking like something of a breather term compared to last term," says Christopher Landau, a Washington lawyer and former law clerk to Justices Scalia and Clarence Thomas.

But with roughly one-third of the docket yet to be filled and no shortage of legal controversies in the nation, such assessments could change in an instant.

Among the more important cases already on the docket is a church-state dispute from Washington State involving a lawsuit challenging the state's refusal to provide public scholarship money to those studying to join the clergy. The suit charges that such refusal is a violation of the First Amendment right to freely practice one's religion. The Washington officials respond in Locke v. Davey that they are merely complying with a state constitutional mandate of strict separation between church and state.

Among several federalism cases, the justices have agreed to hear a Tennessee case that will examine whether states may be sued for money damages for failing to provide wheelchair ramps and other access devices at public buildings. The federal Americans With Disabilities Act requires access ramps and other accommodations, but the state in Tennessee v. Lane is claiming 11th Amendment immunity.

The suit was filed by George Lane, a paraplegic, who was arrested after failing to appear for a criminal case on the second floor of a courthouse unequipped with elevators or ramps. "He crawled up the stairs the first time. The second time he refused and was arrested and prosecuted for not showing up," says Seth Waxman, a Washington lawyer and former solicitor general during the Clinton administration.

Two cases on the docket hold the potential to significantly alter the shape of political battles. In Veith v. Jubelirer, the justices will examine possible limits on gerrymandering in a redistricting case from Pennsylvania.

The second case, McConnell v. FEC, is a constitutional challenge to the McCain-Feingold law, also known as the Bipartisan Campaign Reform Act of 2002. At issue is whether regulations of soft money and issue advertisements violate the free-speech rights of individuals and political parties. The court heard oral argument during a special session on Sept. 8, and legal analysts expect a decision before the end of December.

In the area of criminal law, the new term could prove an important crossroads. The Supreme Court is set to hear four cases related to the so-called Miranda warnings in which police instruct suspects that they have a right to remain silent and that anything they say to police may be used against them in a court of law.

At issue is to what extent law-enforcement officials may exploit legal loopholes surrounding the Miranda warnings without jeopardizing their ability to gather and present incriminating evidence at trial.

During training, some police departments tell their officers that they are more likely to obtain incriminating statements from suspects if they conduct initial questioning without giving any Miranda warnings. After a break, the officers are instructed to give the warnings and then try to persuade the suspect to repeat the incriminating statements so they can be used as evidence at trial.

The court will decide whether such tactics are acceptable.

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