Terror cases may define court term

Although they have been together since 1994, the current lineup of justices at the US Supreme Court has never confronted in a single year such an array of potential landmark cases as those looming on the court's horizon.

Terrorism-related challenges to civil liberties, affirmative action, and campaign-finance reform top the list of mega-issues expected to confront the justices in their 2002-03 term, which begins Monday.

And as demonstrated by the continuing dispute over the replacement of Sen. Robert Torricelli on New Jersey's ballot, the court remains a national lightning rod for some of the most contentious issues in America.

What is less clear is whether the justices are prepared to elevate the stature of the court, taking an aggressive stance in key cases. Nowhere is this question more crucial than in terror cases, court watchers say. Although the justices have yet to agree to review a case resulting from 9/11, analysts say one key will be how they view their responsibilities at a time of national emergency.

"What it comes down to is, How much are they willing to get the court involved in an oversight role in how the president wages a war on terrorism? That is the big-picture question hanging out there for them," says Michael Ramsey, a constitutional law professor at the University of San Diego School of Law and a former Supreme Court law clerk.

Already on the court's docket are cases examining three-strikes sentencing laws, the registration of sexual offenders on the Internet, and an effort in Maine to mandate affordable prescription-drug prices.

The justices will also consider legal disputes involving Congress's power to extend copyrights, and whether Americans have a First Amendment right to burn a cross – an act that has historically been a terror tactic of the Ku Klux Klan.

The Supreme Court's term, which runs from the first Monday in October through the end of June, already includes at least four death-penalty cases examining procedures used in trials and appeals. None is expected to raise the much broader question of the constitutionality of the death penalty itself.

Also on the docket are at least two federalism cases that may provide the court's conservative wing an with opportunity to further expand a string of decisions reining in congressional power when, in the court's view, it encroaches on the sovereignty of the states.

With 51 cases already accepted for oral argument, the justices are expected to take at least 30 more in the months ahead. Several could set the stage for landmark rulings that would elevate the current session into an historic term, court watchers say.

One such case that could be accepted is affirmative action, involving an examination of the admissions program at the University of Michigan Law School. Federal appeals courts in Texas and Michigan have issued conflicting decisions on the constitutionality of race-based college admissions programs. Many court watchers believe the justices are now prepared to decide the issue for the nation.

"This is the best shot of any of the cases in the pipeline," says Chris Hansen, a lawyer with the American Civil Liberties Union who is cocounsel in a second affirmative-action case defending the diversity admissions program for undergraduate students at the University of Michigan.

Other potential cases for the court include whether the new campaign-finance law's restrictions on money in politics are compatible with the court's view of the free-speech mandate of the First Amendment. The justices may also take up a case involving a federal law that requires public libraries to place Internet filters on library computers to block access to adult-oriented or offensive material.

Among terrorism-related legal disputes likely to be appealed to the high court are the Bush administration's holding of secret deportation hearings, the administration's attempt to loosen the rules to gain broader authorizations from the secret Foreign Intelligence Surveillance Court, and the indefinite detention without due process of US citizens who are deemed by the president to be unlawful enemy combatants.

Some constitutional scholars say that even if the justices are presented with the opportunity to decide a significant terror-related issue, they may follow the path of earlier courts and avoid a direct confrontation with the executive branch. "It remains to be seen whether any substantial Supreme Court cases will come out of this [war on terror]," Mr. Ramsey says. "A lot of foreign-affairs law doesn't end up getting a clear decision from the court."

In the meantime, there is no shortage of other legal disputes already on the court's docket. The three-strikes sentencing case examines whether California's law goes too far in permitting the state to send someone to prison potentially for the rest of his life when his third strike was a relatively minor crime like shoplifting.

Leandro Andrade received a 50-year sentence after stealing $153 worth of children's videotapes from a Kmart. In a second case, Gary Albert Ewing was sentenced to 25 years in prison for stealing three golf clubs worth $399 each from a pro shop.

California courts have upheld harsh sentences for relatively minor third strikes. But last November, the Ninth US Circuit Court of Appeals overturned Mr. Andrade's sentence, saying it was "grossly disproportionate" to his shoplifting conviction.

Steven Shapiro, national legal director for the ACLU, says the case may help clarify which sentences violate the cruel and unusual clause of the Eighth Amendment. "If the sentence handed down for Andrade is not disproportionate for Eighth Amendment purposes, then no sentence is disproportionate," he says.

But the court may sidestep that issue, analysts say, and examine whether federal judges must afford a high degree of deference to state judges on such issues. The Antiterrorism and Effective Death Penalty Act of 1996 requires that federal judges take that posture when considering issues raised in a habeas petition like Mr. Andrade's.

In taking up two cases involving Internet registration of sexual offenders, the high court will consider whether these laws violate the constitutional guarantee of due process and the bar against ex post facto laws. At issue are so-called Megan's laws in Alaska and Connecticut.