CHALLENGES FOR THE SUPREME COURT IN THE WAKE OF TERRORISM:
Allowing Greater Federal Power, And Minimizing Church/State Ties

By EDWARD LAZARUS

Tuesday, Oct. 02, 2001

In recent years, the opening of the Supreme Court term has been the focus of considerable fanfare and discussion. This year, the event passes as a footnote to news of much greater urgency. That is entirely as it should be. But the Court may take a high-profile role again someday soon.

For now, the pressing questions all relate to how the other branches of government — those charged with making foreign and economic policy, and enacting the laws that govern the way we investigate and address terrorism — will respond to the events of September 11. Eventually, however, the Court will be required to assess some of the legislative responses to the tragedy. Then we will see the Court's finest hour, or, possibly, its darkest.

The President and Legislature Rise to the Occasion

The crisis created by the terrorist attack has had a dramatic and salutary effect on both the Executive and Congress. President Bush, to his credit, has quickly abandoned both the narrow partisanship and the unilateralist foreign policy of his Administration's first months. In their place, he has set an inspiring, bipartisan, internationalist agenda of eliminating terrorism root and branch.

Similarly, in Congress, a wide-ranging group of Democrats and Republicans have left behind the small-minded, acrimonious debate over capital gains tax cuts and social security lockboxes. In its place, they have moved on to an urgent and probing discussion of the large issues of national and economic security that now loom ominously about us.

It is too soon to know, of course, whether the new way of doing business in Washington will produce wise and effective policies. But it not to soon to say that, at least for a time, the higher calling of a national emergency has shamed our elected institutions of government out of their endless routine of shallow political maneuvering.

The Challenge to the Court's Federalism

Will the Court respond as positively? We can only hope so.

Eventually, inescapably, the Court will be drawn into the war against terrorism that Bush has declared. Congress is almost certain to give law enforcement greater authority to wiretap. It may also give law enforcement new authority to monitor the Internet or to detain and question foreign nationals. In the next year or two, the Court will be called upon to pass on the constitutionality of all such measures.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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