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Washington�The new term of the U.S. Supreme Court opens next month with a heavy slate of potential landmark cases. The cases lie in church-state relations, campaign finance, Miranda warnings, disability discrimination and federalism. In a way, the official opening date, Oct. 6, feels somewhat anti-climactic. The justices heard four hours of arguments on Sept. 8 in one of their most important political cases in recent years� McConnell v. Federal Election Commission, No. 02-1674, a constitutional challenge to the Bipartisan Campaign Reform Act of 2002. [ U.S. District Court for D.C. opinion] That case, while extremely important to the conduct of federal elections, is unlikely to have the kind of dinner-table appeal promised by others on the argument calendar or waiting in the wings for review of their petitions for certiorari. More likely to provoke heated debate is Locke v. Davey, No. 02-1315, in which the justices will decide whether a state can withhold state-funded college scholarships from students pursuing religious studies or attending religious schools. [ 9th Circuit opinion] Prominent among cases awaiting a decision on certiorari is U.S. v. Newdow, No. 02-1574, which asks the justices to review a lower court ruling that the words “under God” in the pledge of allegiance violate the Constitution. [ 9th Circuit opinion] The court has accepted 38 cases for argument, roughly half of what it is likely to decide in the term. After a Sept. 29 conference in which they will sift through more than 1,000 petitions filed during the summer, the justices will add cases and then continue to take new ones for argument this term until mid-January. “ Locke and the campaign finance case are the headliners of the term right now,” said court scholar Thomas E. Baker of Florida International University College of Law. “But if the justices take the Pledge of Allegiance case, that will send the term into the stratosphere.” In Locke v. Davey, the state of Washington asks the justices if the First Amendment’s free exercise clause requires the state to fund religious instruction if it provides college scholarships for secular instruction. The 9th U.S. Circuit Court of Appeals said it does. “This is the next-generation, school choice case,” said Douglas Kmiec of Pepperdine University School of Law. Last year, a 5-4 high court held that the First Amendment’s ban on an “establishment of religion” was not violated by the use of taxpayer-funded vouchers used by parents to send their children to private or religious schools. Pro-voucher forces have run into opposition in Washington and 35 other states that have so-called Blaine amendments in their state constitutions. In the late 19th century, Congressman James G. Blaine proposed a federal constitutional amendment to bar the use of public money to support Catholic schools. Although his effort failed, versions of the amendment were adopted by 36 states. Despite the anti-Catholic animus behind the Blaine amendment, Washington state argues that today it serves to protect separation of church and state. “There are serious free exercise and free speech issues in this case,” said Kmiec. “It also is the first opportunity the court has had to review the sorry history of 19th century religious discrimination that resulted in Blaine amendments.” Baker agreed, saying, “The state will have to persuade the court that, whatever the original intent of the constitutional provision is, it serves a valid contemporary purpose corresponding to the establishment clause. The original taint has somehow been attenuated.” Campaign finance Much has been said and written about the other major First Amendment challenge of the term, McConnell v. FEC. At the heart of the political and legal battle are two key provisions in the new campaign finance law: the bans on soft-money contributions and electioneering communications-so-called issue ads. “After the argument I am even more convinced that the court will invalidate most of the law,” Kmiec said. “The soft-money limitation is too sweeping a limitation on speech and association, especially because it presumes to regulate state electoral activity. And the attempt to distinguish issue and express advocacy is hopeless.” A decision in that case could come at any time. One of the enduring legacies of the Rehnquist Court will be in the area of federalism. The result of that work has been to rein in Congress’ lawmaking powers under the commerce clause and under Section 5 of the 14th Amendment. The latter source of lawmaking authority has been used by Congress to address a range of unlawful discrimination. In Tennessee v. Lane, No. 02-1667, the court will decide whether Congress exceeded its authority under Section 5 by allowing private suits against states for violations of Title II of the Americans With Disabilities Act (ADA). Title II requires that public “services, programs or activities” be made accessible to people with disabilities. [ 6th Circuit opinion] The facts are particularly compelling. George Lane, wheelchair-bound, was forced to crawl up two flights of courthouse stairs for arraignment on misdemeanor traffic charges. When called for a pretrial hearing, he went to the courthouse but refused to crawl up the stairs again and was arrested for “failure to appear.” Beverly Jones, who also uses a wheelchair, is a court reporter who was unable to enter four county courthouses where lawyers had hired her. She says that 23 Tennessee counties have inaccessible courthouses. State immunity Last term, for the first time, the justices broke a pattern of upholding states’ 11th Amendment sovereign immunity from suit in recent federalism cases. It held that states were not immune from suit for violations of the federal Family and Medical Leave Act. “There were a significant number of sovereignty or quasi-sovereignty cases last term where the states didn’t do as well as they have been,” said veteran Supreme Court litigator Mark I. Levy of Washington’s Howrey Simon Arnold & White. “The big one was Hibbs, a Family and Medical Leave Act decision. “This term will tell us whether Hibbs signaled a change in analytical direction or a ticket good for this ride only,” he said, adding that he suspects the latter. Levy and others also are watching Frew v. Hawkins, No. 02-628, the flip side of the Tennessee case. In Frew, the court will decide whether a state waives its immunity by urging a federal court to adopt a consent decree based on federal law. Frew stems from a class action against Texas for violating a 1996 consent decree over health care for poor children. [ 5th Circuit opinion] “ Frew is important both analytically and practically,” said Levy. “Some cases say litigation choices do waive immunity. And the more immunity is waived, the more it can ameliorate the Supreme Court’s stringency in finding it has not been waived in the first place.” Criminal procedure The new term looms particularly large for criminal procedure challenges. The court has scheduled five Fourth Amendment cases for arguments, four involving searches and one concerning checkpoint stops. The justices also have a trio of cases involving Miranda warnings. “In the Fourth Amendment cases, the one common denominator-whether intentional or accidental-is the prosecutors lost in all of those cases,” said criminal law scholar Tracey Maclin of Boston University School of Law. “I think it is fair to say the court tends to be much more sympathetic to cert petitions coming from prosecutors than from defendants, particularly when the solicitor general has lost below, as the government did in Banks,” said Maclin, who filed amicus briefs on behalf of the National Association of Criminal Defense Lawyers supporting defendants in two of the search cases. U.S. v. Banks, No. 02-473, asks how long police officers must wait before forcibly entering premises to execute a search warrant after knocking and announcing their presence. The delay in Banks was 15 to 20 seconds. The 9th Circuit gave a list of factors that officers should consider before forcing entry, which the government calls “an amorphous and unworkable categorical scheme.” [ 9th Circuit opinion] The other Fourth Amendment cases involve vehicle searches ( Maryland v. Pringle, No. 02-809 [ Maryland Court of Appeals opinion]; Arizona v. Gant, No. 02-1019 [ Arizona Court of Appeals opinion]); a checkpoint organized to investigate a prior offense but which resulted in drunken-driving arrests ( Illinois v. Lidster, No. 02-1060 [ Illinois Supreme Court opinion]); and qualified immunity for police officers who execute a defective warrant in good faith ( Groh v. Ramirez, No. 02-811 [ 9th Circuit opinion]). Maclin said two of the three Miranda challenges could result in major rulings and will show the “true colors” of the chief justice and other justices who have expressed dislike for the landmark Miranda ruling. In U.S. v. Pantane, No. 02-1183, the justices will consider whether the failure to give a suspect the Miranda warnings requires the suppression of physical evidence derived from the suspect’s unwarned, but voluntary, statements. [ 10th Circuit opinion] And in Missouri v. Seibert, No. 02-1371, the justices will examine the legality of a confession obtained after an officer used a two-stage interrogation technique learned at a national police training institute. The officer intentionally withheld Miranda warnings from Patrice Seibert hoping to get an admission of guilt. When she did confess, he took a 20-minute break and then resumed the interrogation using a tape recorder and advised her of her Miranda rights. She signed a waiver form and repeated statements made before her Miranda warnings. [ Missouri Supreme Court opinion] The officer’s two-stage training is widespread in California, said Maclin, and has been the subject of law review articles. “ Seibert is a litmus test for the court,” he added. “You have a police officer testifying he had been trained this way and he was damn sure he would violate her rights. The ball is certainly in the court-if they really do believe in Miranda-to do something about this. What is the incentive for police officers now to give warnings if they know they can wait and then come back?” However, the government and others said courts should focus on the voluntariness of the confession. The court’s major death penalty case so far this term is Banks v. Cockrell, No. 02-8286, which has ineffective assistance of counsel at its core. [ 5th Circuit opinion] “The questions presented in Mr. Banks’ petition directly implicate the integrity of the administration of the death penalty in this country,” wrote four former federal judges and prosecutors, including former FBI Director William Sessions, in an amicus brief supporting his petition. And one of the sadder legacies of the Clinton administration reappears at the high court this term in a case involving the suicide of former Clinton White House Deputy Counsel Vince Foster. The Foster suicide served as the backdrop to a 1998 high court ruling that the attorney-client privilege survives the client’s death. Swidler & Berlin v. U.S., 524 U.S. 399. This term, the government wants to overturn an appellate court ruling that would allow Los Angeles attorney Allan Favish access to four color photographs of Foster’s body. Office of Independent Counsel v. Favish, No. 02-954, asks the high court to examine the exemption under the Freedom of Information Act that protects against “unwarranted invasion of personal privacy.” [ 9th Circuit opinion] Coyle’s e-mail address is [email protected].

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