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Wednesday, Oct. 03, 2001

The Supreme Court returned to work this week with a range of familiar hot-button issues on its docket: affirmative action, capital punishment, and school vouchers, among others. The cases the Court will decide over the next nine months are no doubt important to the litigants and the people whose lives they will affect. Yet in the aftermath of September 11, the divisions among the Justices must be seen in a different perspective.

For the last two decades we have been told that America is fighting a culture "war," with the Supreme Court a "battlefield," and the Justices themselves sometime "combatants." Now we know better. These metaphors are entirely wrong — not just because after September 11, they seem to trivialize war, but also because the Justices were never truly at war with each other, but rather in heated debate. And debate is not a type of war, or a step away from war; it is the opposite of war.

A Divided Court with a Shared Commitment

Whether the Constitution requires, permits, or prohibits abortion, affirmative action, the death penalty, or school vouchers are questions that we can passionately debate in a variety of fora. But even as we debate them, we recognize that our shared commitment to resolving these questions peacefully — through reasoned discussion, judicial decisions, and political action, not violence — is more fundamental, and ultimately more important, than any particular resolution at which we might arrive.

The terrorists who destroyed the World Trade Center and damaged the Pentagon epitomized what we are against, but they also showed us what we are for. As our leaders all implore us to return to our familiar routines and thereby resist giving in to terrorism, it is appropriate for the Court — and for Court-watchers — to focus on the mundane and not-so-mundane questions that inevitably arise in any functioning democracy. Yet perhaps the new reality will enable the Court to put aside whatever bitter feelings linger from Bush v. Gore, and recognize that principled (or even unprincipled) disagreement is no cause for division.

Issues on the Horizon

In a speech given last week in New York, Justice Sandra Day O'Connor stated that government efforts to combat terrorism on the home front will raise "tough questions" that will "require a great deal of study, goodwill and expertise to resolve them." What she did not state, but what is obvious nonetheless, is that the final responsibility for resolving many of these tough questions will rest with her Court.

It is still too soon to know exactly which of the proposed changes in law enforcement and counter-terrorism strategy will become official policy. Nonetheless, it is already clear that three sorts of issues are likely to arise: questions of equality, of privacy, and of due process.

Equality Issues for Arab-Americans and Muslim-Americans

Virtually all responsible political leaders have condemned stereotyping of Arab-Americans and Muslim-Americans. As a result, wholesale official discrimination of the sort our government perpetrated against Japanese-Americans during World War II — and that the Court failed to condemn in its egregious decision in Korematsu v. United States — is not a realistic possibility.

Still, some attention to national origin and religion may play a role in proactive measures by law enforcement. Suppose the FBI monitors chat rooms on Arab language websites to a much greater degree than it monitors other websites (such as, for example, the Writ Message Boards). Because chat rooms are public, there would be no privacy violation — but there would be an equality question.

Singling people out for surveillance on the basis of language or nationality would pose a prima facie equality issue — even if the surveillance does not implicate Fourth Amendment limits on warrantless searches and seizures.

Under standard constitutional doctrine, government actions taken on the basis of race, ethnicity, or religion typically lead to exacting judicial scrutiny. But the constitutional provisions implicated would be the Fifth and Fourteenth Amendments, with their guarantee of equal protection of the law, not the Fourth Amendment.

Privacy and Balancing

Lawyers and judges who are uncomfortable about ethnic profiling — even if ethnicity is only one piece of the profile — may favor law enforcement techniques that subject everyone to greater surveillance. Indeed, some civil libertarians have already argued that this is the appropriate line.

Subjecting only a small subset of the population to far-reaching law enforcement techniques risks going too far, some say. But if those techniques affect everyone equally, the public will cry foul when the line has been crossed, and too much privacy has been sacrificed for security.

For example, the public likely would not tolerate strip-searches of all airline passengers — but it might tolerate such searches if applied, for example, only to those passengers who fit an ethnic profile. If the choice is between strip-searches for all, and strip-searches for none, the public may choose more carefully.

Notice how this argument pits the privacy of all against equality — or more precisely, against the privacy of some. To protect the constitutional value of equality may, in other words, require some sacrifice of the constitutional value of privacy. Put another way, according to this argument, a greater number of people may have to endure searches that, to some extent, limit their privacy, so that an ethnic minority does not have to endure even more invasive searches.

The tradeoff I have described has always been implicit in the law, but it now may become explicit. Jurists like Justice Antonin Scalia have long criticized balancing tests as providing judges with too much discretion. Such judges prefer "bright-line rules." Yet as future cases increasingly present constitutional rights and values on each side of the scales, balancing may become unavoidable.

When the Fourth Amendment is pitted against the Fifth or Fourteenth Amendment, and privacy against equal protection, there will be no easy answers.

So too, we can expect the government to argue — not without good reason — that security itself is a constitutional value. Liberals who have long contended that the meaning of constitutional language like "unreasonable searches and seizures" should be interpreted flexibly to bar some police practices that were permitted in the Eighteenth Century, should now expect that argument to be turned in the opposite direction. A law enforcement technique that may be unreasonable if used against a petty thief, it will be argued, is entirely reasonable if employed against a terrorist.

Due Process Questions

Although President Bush and others declared the September 11 attack an act of war, the United States has, until recently, treated terrorism as a species of crime. The government indicted and prosecuted the people who attempted to destroy the World Trade Center in 1993 and even before the latest events, Osama Bin Laden was under indictment for his role in the bombing of U.S. embassies in Kenya and Tanzania.

Already a debate has begun over whether to treat the terrorism threat as a military or a criminal matter — or more properly, over what mix of military and law enforcement techniques to deploy.

Of course, at this point, it would be foolish to impose a criminal justice template on every aspect of operations. Due process norms — such as the accused's right to notice of the charges against him, his right to confront the witnesses against him, or the right to an attorney — can hardly be applied on the battlefield.

Yet at the same time, some substantial portion of the government response will use domestic legal processes, in which citizens, aliens, and their lawyers will undoubtedly press conventional legal claims. These claims are likely to pull the Justices in two competing directions.

A Court Torn Between Two Doctrines

On the one hand, there is a long tradition of judicial deference to executive authority in wartime. Accordingly, to the extent that the Justices perceive the domestic legal response as a piece of the larger strategy, they will likely sustain at least those measures — such as closed trials and perhaps even secret evidence — for which the government can offer a plausible national security rationale.

On the other hand, in recent years the current Supreme Court has taken a remarkably expansive view of its power, conceiving the federal judiciary as not merely one branch of government, but as the pre-eminent one. This view may come into conflict with the tradition of deference to the executive in national security matters.

The most obvious example of the Court's view of itself as first among equals is Bush v. Gore. There, the Court ignored the claim that Congress was the appropriate body to resolve the election dispute. But the attitude that the Court has the first and last word is shared by all the Justices — not just those in the Bush v. Gore majority.

Consider two immigration cases decided in June, INS v. St. Cyr and Zadvydas v. Davis. In both cases, the majority included the four Bush v. Gore dissenters. (They were joined, respectively, by Justice Kennedy in St. Cyr and Justice O'Connor in Zadvydas.) Both decisions went to great lengths to find that Congress had not eliminated the availability of a writ of habeas corpus to aliens. In so doing, they both affirmed a substantial judicial role even in immigration matters — traditionally a subject over which Congress has considerable discretion (and one that arguably has an inherent relationship to national security).

In St. Cyr, the Court allowed a challenge to deportation of an alien; in Zadvydas the Court allowed a challenge to indefinite detention of an alien. These decisions will no doubt be invoked if, in the coming months, the government seeks to detain terrorism suspects without trial — or, conceivably, deport aliens who are associated with terrorists but not accused of crimes.

Only time will tell whether a Supreme Court that has lately preferred its own power to that of the other branches of government will revert to the historical practice of judicial deference to executive and legislative authority that customarily occurs during wartime.

Postscript: Update on Legal Services

In my last column, I noted that the Legal Aid Society had been badly affected by the attacks. The good news is that the main building appears to be structurally sound and so will be habitable once again. The bad news is that the Society's client base is simultaneously expanding and experiencing new stresses such as unemployment and homelessness. If you wish to contribute or to find out other ways you can help, please visit the Society's website.

Michael C. Dorf is Vice Dean and Professor of Law at Columbia University School of Law.

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