SUPREME COURT OCTOBER 2002 TERM PREVIEW: PART TWO

The Supreme Court Term that began last week may prove more notable for the issues the Justices do not resolve than for those they do.

As I noted in my last column, the Court began the Term with a docket roughly half-filled with cases varying from the routine to the moderately important. The Court may yet add cases involving the war on terrorism, affirmative action, and the death penalty. But with the denial of review in Forrester v. New Jersey Democratic Party--the New Jersey Supreme Court decision allowing Senatorial ballots to be reprinted with Robert Torricelli's name replaced by Frank Lautenberg's--the Court avoided a replay of Bush v. Gore, this time with control of the Senate rather than the Presidency at stake.

More fundamentally, although the work of the Court is important, we should not forget that the Constitution assigns the most important matters our society faces--such as the decision whether to go to war and the question of how to manage the economy--to our elected leaders, not the courts.

Terrorism-Related Cases on the Horizon

Of the terrorism-related cases currently wending their way through the lower courts, none presents a more basic civil liberties question than the decision by the government to treat Yasser Hamdi, Jose Padilla, and possibly other U.S. citizens as enemy combatants unentitled to the procedural protections associated with a trial in a civilian court.

As I explained in my August 21 column the government's position in the Hamdi case is, as even the generally conservative United States Court of Appeals for the Fourth Circuit observed, truly "sweeping." If the Justice Department has its way, "any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so."

If and when the matter reaches the U.S. Supreme Court, the Justices will likely be troubled by the prospect of giving the government carte blanche. At least so long as Congress has not suspended the privilege of the writ of habeas corpus, civilian courts are entitled and obligated to inquire into the lawfulness of executive detention. The real issue in cases like Hamdi's, therefore, is not whether or not he is entitled to judicial review, but how deferential that review should be.

The far-reaching implications of the Hamdi and Padilla cases arise from the fact that both men are U.S. citizens. Thus, any ruling with respect to them has potential application to anyone. In contrast, many of the other terrorism-related issues--including the treatment of the Guantanamo Bay detainees, and the question whether the government must make a particularized showing of danger to close a deportation hearing to the public--involve the rights of aliens.

Whether to distinguish the rights of citizens from the rights of aliens presents a difficult problem. After all, the constitutional rights to due process of law and to equal protection of the laws attach to "persons," not just "citizens."

To be sure, the so-called "plenary power doctrine" permits Congress to regulate the conditions under which aliens are admitted to the territory of the United States. But that doctrine has never been thought to strip aliens of all of the Constitution's protections.

On that basis, in August, the Sixth Circuit Court of Appeals ruled in Detroit Free Press v. Ashcroft, that there is a right of press access to deportation hearings--unless the government makes a particularized showing that secrecy is needed in any given case. "Democracies die behind closed doors," the court categorically declared. However, just last week, the Third Circuit Court of Appeals reached the opposite conclusion in North Jersey Media Group v. Ashcroft, finding no tradition of open deportation hearings.

With a square conflict between two federal appeals courts, the secret hearing issue appears ripe for Supreme Court resolution.

Non-Terrorism Cases: Issues of Race and Death

The Court may or may not decide to review the May decision of the United States Court of Appeals for the Sixth Circuit, upholding the use of race in admissions at the University of Michigan Law School. But either way, it is only a matter of time before the Court will have to revisit the question of when, if ever, race and sex are permissible factors in admission to public institutions of higher education.

The high court's 1978 ruling in Regents of the University of California v. Bakke prohibited racial quotas but permitted race as a so-called "plus-factor" when considered in the context of a complete individual application. However, the lower federal courts have disagreed over whether the controlling opinion of the late Justice Lewis Powell--the swing vote in Bakke--has been superseded by subsequent Court affirmative action decisions that appear to narrow the legitimate scope of racial considerations.

Most Court-watchers agree that Justice Sandra Day O'Connor--in many ways Powell's successor as the swing vote on the Court--holds the key to this issue. With a conflict among the circuit courts, it is hard to see the Justices ducking this issue much longer.

In recent months, two federal district judges invalidated the federal death penalty, albeit on different grounds. First, in July, in United States v. Quinones, Judge Jed Rakoff found that the death penalty imposes an unacceptably high risk that innocent defendants will be executed.

Second, in September, in United States v. Fell, Judge William K. Sessions III found that the standards for admission of evidence at the sentencing phase of a federal capital proceeding unconstitutionally permit the judge, rather than the jury, to find the crucial facts necessary to support a death sentence. According to Judge Sessions, the federal death penalty therefore runs afoul of the Supreme Court's June ruling in Ring v. Arizona. In Ring, the Court invalidated the capital sentencing scheme of Arizona because it gave judges the power to find aggravating factors that make a defendant eligible for the death penalty. Thus, the Court held that the Arizona capital sentencing scheme violated the constitutional right to a jury trial. That was also the basis for the ruling in Fell.

Fell is the less sweeping of the two district court decisions, and thus more likely to be upheld on appeal. Before either case reaches the Supreme Court, however, the government will appeal to the U.S. Court of Appeals for the Second Circuit. Given the pace of litigation, it is unlikely that either issue will arrive at the Supreme Court before the end of the current Term.

What's Not on the Docket: War and the Economy

Since the early nineteenth century, critics have taken the Supreme Court to task for its seeming interference with democracy. Today, Court doctrines displace elected officials' judgment on matters of race relations, school prayer, abortion, federal-state relations, and many other issues. Given the ambiguity of the relevant constitutional text, the critics charge, the Court should stay out of these essentially political matters.

Defenders of the Court counter that democracy has never meant simple majority rule--that the Court, when it interprets the Constitution, actually advances the project of democratic governance under law. Even controversial decisions guaranteeing freedom of speech and the press, for example, contribute to the open debate necessary for self-governance.

The critics of the Court might counter, however, that the Justices--especially those of the Rehnquist Court--have interjected themselves into virtually every important question. The Court even plays a substantial role in choosing our elected leaders, as it did in Bush v. Gore, and as it may do again in resolving the challenge to the recently enacted McCain-Feingold campaign finance reform measures that is speeding towards the Court.

But while important, such decisions have only an indirect impact on politics. On the truly fundamental matters, the Constitution gives the Court almost no direct role.

Take, for instance, the extremely important and hardly hypothetical question of whether Congress can delegate to the President the decision whether to go to war. This is a constitutional question, but one that the Supreme Court will almost certainly not attempt to answer.

Or consider the beleaguered economy. The powers to impose taxes and to spend money are clearly committed to the political branches.

The work of the Supreme Court is important, of course. But Learned Hand, perhaps the greatest federal appeals court judge in our nation's history, was probably right when he said that "liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it."

The fundamental decisions--about war and peace, about prosperity, and even about how to balance the competing demands of order, liberty, and equality--are committed in the first instance, and sometimes the last instance, to "We the People."