A defining term for high court

Beginning today, the session could indicate the depth of justices'conservative moorings.

The US Supreme Court under Chief Justice William Rehnquist isn't known for its displays of judicial fireworks. But large and difficult questions loom over the court's docket this fall that will offer Mr. Rehnquist and his conservative colleagues opportunities to fire off an unusual array of constitutional pyrotechnics.

From states' rights to the separation of church and state, the court will decide some of the most profound and politically sensitive issues in American life. At the same time, it will rule on a variety of lesser disputes that will touch millions of people, or at least entertain - from grandparents' rights to nude dancing.

Thus the term will give clearer views of the depth of the court's conservative moorings - at a time when the judiciary is playing a larger role in American culture.

"It is big, it is very big," says Viet Dinh, a law professor at Georgetown University here. "Last year started out as a little bit of a dud but ended up strong. This year starts out with a bang."

As the justices officially begin their 1999-2000 term today, the conservative wing of the court is expected in the coming year to continue its crusade to restore what it views as the proper constitutional balance of power between the states and the federal government.

Taking up where the justices left off with major federalism decisions last June, the court will examine whether state employers are shielded from liability for alleged violations of federal age-discrimination laws. It is a determination that could call into question a wide range of other federal civil rights statutes.

The court will also decide whether Congress impermissibly intruded into state jurisdiction when it passed the 1994 Violence Against Women Act. The law empowers the victims of rape or domestic abuse to sue their attackers for money damages in federal court.

If the law is overturned, women will have to rely on state laws for compensation in such cases, a development that could make it harder for some women to fight their attackers in court. From a states' rights perspective, striking down the federal law would safeguard states' authority and help rein in the power of Congress.

"If they strike [the act] down, then we will know that they really mean business with this federalism," says Michael Dorf, a constitutional law professor at Columbia University Law School in New York.

Two other cases that could produce landmark rulings involve public aid to parochial schools and campaign finance. And in one of the most important health-related cases ever debated at the high court, the justices will decide whether the Food and Drug Administration has authority to regulate the sale and marketing of tobacco products.

But perhaps even more significant than any individual case is the lingering question of the court's future composition. The recent illness of Justice Ruth Bader Ginsburg and the approaching presidential election highlight the precarious balance between conservative and moderate factions. The conservative wing includes Justices Rehnquist, Clarence Thomas, and Antonin Scalia. They are frequently joined by Justices O'Connor and Anthony Kennedy, who in some cases become swing votes. On the liberal-moderate side of the court are Justices Ginsburg, John Paul Stevens, David Souter, and Stephen Breyer.

A single appointment to the court could tip the balance on a long list of contentious national issues. For example, the court may be only one vote away from ending all affirmative-action programs - a ruling that would complicate efforts of universities, city governments, and others to boost racial diversity in their realms.

The same single-vote scenario could affect the use of racial criteria to draw voting districts, an issue expected to heat up after the 2000 census. If such a ruling makes it harder for minority candidates to get elected, Congress and state legislatures could become whiter.


Does a special-purpose election in Hawaii open only to native Hawaiians violate the 15th Amendment, which bars states from using race as a factor to exclude anyone from voting?

The court will face the race issue head on this Wednesday, when it considers the constitutionality of a special-purpose election in Hawaii - one that is open only to native Hawaiians.

The 15th Amendment, passed in 1870 to force Southern states to allow freed slaves to vote, says a state may not use race as a factor to bar someone from voting. Hawaii officials say the exclusive election is a special accommodation to help compensate native Hawaiians who lost their island homeland to an expansionist United States.

Among those urging the court into a bedrock constitutional battle is Robert Bork, whose own nomination to the high court was scuttled over concerns that he was too conservative. Mr. Bork signed onto a friend-of-the-court brief that urges the justices to strike down the Hawaii special elections.

"A state has no right to engage in racial classifications on the right to vote in a state election simply to preserve a particular culture," the brief says.

The facts of the Hawaii case may be too specialized to produce a national precedent. But if the court overturns the special-purpose election on constitutional grounds, it would clearly demonstrate its resolve on the racial classification issue - a resolve likely to be felt in future affirmative-action and redistricting cases.

"This is a freebie for the court," says Mr. Dorf of Columbia University. "It is an opportunity for the court to take a stand" with very little at stake.


Can states limit the amount of money contributed to candidates in an election without violating the free-speech rights of the contributor?

No matter what the court decides in this term's case on campaign fund-raising, the ruling is guaranteed to have a momentous impact. Either the court will uphold limits on contributions - giving new impetus to campaign-finance reformers - or it will throw the limits out and spark a no-holds-barred war between Democrats and Republicans to raise as much money as possible in advance of the 2000 election.

The case before the court this term involves a Missouri state law that limits to $1,075 the amount any individual can contribute to a candidate for statewide office.

A federal appeals court in St. Louis struck down the limits, saying they were overly restrictive of free-speech rights.

The link between free speech and campaign finance was firmly established in the Watergate-era court decision, Buckley v. Valeo. That ruling, in which the court declared that spending money in political campaigns is a form of free speech protected by the Constitution, helped to establish the rules governing campaign spending and contribution limits that are still in effect today.

Since then, however, that system has been somewhat circumvented by innovative campaign fund-raising and contribution mechanisms.

The Clinton-Gore reelection team, for example, rewarded donors with overnight stays in the Lincoln Bedroom in the White House, one of several questionable tactics used to raise money for the 1996 campaign.

Congress has been unable to agree on an acceptable campaign-finance reform package, and the Federal Election Commission lacks the clout and political will to hold candidates and their political parties accountable. The result is that today the high court offers would-be campaign-finance reformers their best - and perhaps only - shot at significantly changing the system.


Does a US program that provides supplemental education aid to public, private, and parochial schools on an equal basis violate the separation of church and state?

This term, the court has an opportunity to decide whether to lower the wall of separation between church and state, by permitting taxpayer money to flow to parochial schools to pay for innovative teaching materials such as computers in the classroom.

A US appeals court in Louisiana has declared unconstitutional a federal aid program that provides money for all schools - public, private, and parochial - on an equal basis.

The case doesn't deal with vouchers, which give families public money so children can attend private or parochial schools. But it is considered a test of how the high court might vote about the constitutionality of such programs.

The Clinton administration is urging the court to overturn the appeals court decision, in the interest of fulfilling the president's goal of connecting every classroom and school library in the nation to the Internet.

The case is the most important church-state lawsuit to come before the Supreme Court in 20 years, says Barry Lynn of the advocacy group Americans United for the Separation of Church and State.

In broad terms, the case will determine whether the nation will continue a strict policy of providing only the most limited aid to religious schools. The alternative is a system in which religious schools are treated on more equal footing with private, nonreligious schools, when government aid is distributed. Proponents of equal aid say it will shift the government posture from appearing hostile to religious schools to regarding those schools in a more neutral way.

Opponents, however, see the thin edge of a wedge that leads ultimately to government subsidies for religion. At a minimum, they say, any government aid to a religious school frees up other funds that can be used to advance the cause of that particular religion. The Constitution forbids the government from granting any support that would help a particular religion, they argue.


Are cigarettes a delivery device for addictive nicotine? If so,

does the Clinton administration have authority to regulate tobacco sales and marketing?

On the tobacco front, the court will decide whether the US Food and Drug Administration (FDA) has the power to regulate cigarettes and other tobacco products.

At issue is whether tobacco, which contains addictive nicotine, can be legally characterized as a drug, and whether cigarettes qualify as drug-delivery devices.

In 1996, the Clinton administration came to this conclusion and requested the FDA to take immediate action as part of its national effort to protect children from tobacco products.

The tobacco industry challenged the FDA's authority, and a federal appeals court agreed with the industry by a 2-to-1 vote.

The FDA position is somewhat undermined by a long history of that agency denying its jurisdiction over tobacco. But administration lawyers argue that times have changed, and new information suggests that the tobacco companies themselves viewed cigarettes as a nicotine-delivery device.

The court's decision will determine whether the FDA will play a major role or be assigned a back-row seat in what has grown into a nationwide campaign against cigarette smoking.

Even if the court rules that the FDA has no power to regulate tobacco, the administration has demonstrated its intent to fight the tobacco industry in any way it can.

The Justice Department is pursuing a civil suit against the industry to recover federal medical costs of treating smoking-related illnesses.

If the civil lawsuit is settled out of court, like scores of similar state suits over the past two years, the federal government and the tobacco industry might end up negotiating many of the same measures the FDA had sought to impose.

(c) Copyright 1999. The Christian Science Publishing Society

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