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Three months ago, the Supreme Court left the stage with a show-stopping finale, issuing blockbuster opinions on everything from abortion and school prayer to the Boy Scouts’ right to exclude homosexuals. It is tempting to think that the 2000-01 docket, set to begin Oct. 2, can’t possibly measure up. But don’t tell that to Gail Atwater of Lago Vista, Texas. Atwater was driving her 6-year-old daughter and 4-year-old son home from soccer practice on a sunny spring day in 1997, when the family noticed a toy had fallen off their pickup truck. As Atwater slowly cruised around the neighborhood, she agreed to let her kids stand on the seat to look out the window for the toy. When a police car approached from the other direction, Atwater says she knew she’d get a ticket for not buckling her kids’ seat belts. She did not expect, however, that the officer would handcuff and haul her off to the police station for a crime that is punishable by a maximum $50 fine. Now, the arrest has become a test of whether the Fourth Amendment bars police officers from making arrests for offenses that carry only a fine as punishment. The justices will hear Atwater v. City of Lago Vista on Dec. 4. “This is an extremely important case,” says Atwater. Likewise, Robin Conrad of the U.S. Chamber of Commerce knows that the significance of a Supreme Court issue cannot be measured in newspaper headlines. Conrad’s group represents 140,000 individual companies and is a party in Browner v. American Trucking Associations (set for argument Nov. 7), a case that could dramatically alter the power of the Environmental Protection Agency and other agencies by limiting their rule-making authority. “There is not one Chamber member that’s not affected by these rules,” says Conrad. “We’d like to see some restrictions on the EPA’s unbridled authority.” Atwater and Conrad won’t be the only ones watching the court this term. By the time the justices get to Christmas, they will have wrestled with cases that will affect, among others, the disabled, migratory birds, garbage dumps, cell phone users, radio talk-show hosts, legal aid lawyers, high school football coaches, political candidates, pregnant women, murder suspects, and business owners, their employees, and their consumers. So far, the high court has accepted 34 cases. The justices are expected to accept another batch of cases this week, and others will come throughout the term. Last term, the court decided 74 cases, the lowest total for the modern Supreme Court. CONGRESSIONAL POWER While the high court’s decisions reverberate throughout the land, in recent years its presence has been felt strongest across the street at the U.S. Capitol. Since 1994, lawmakers have watched the justices strike down 24 acts of Congress. While Internet decency standards and restrictions on adult TV programming fell to free speech protections, the more prominent victims have included federal prohibitions against handguns in school zones and a section of the Violence Against Women Act. The justices’ problem with these laws-or at least the problem cited by Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas-was that Congress had overstepped constitutional limits on regulating interstate commerce. If the Court says that handguns or rape don’t affect interstate commerce, then it might say the same about migratory birds in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (Oct. 31). That case asks whether blue herons and other birds contribute enough to interstate commerce to allow the federal government to control their wetland habitat. At stake is more than the 500 acres outside of Chicago which will either be a home to the birds or the city’s garbage. Says Roy Schotland of Georgetown University Law Center, “This case will expose what the court meant” in its commerce clause jurisprudence striking down the federal prohibitions on guns in school zones and the right of rape victims to sue their abusers under the Violence Against Women Act. Another case exposes an act of Congress to the court’s federalism-based scrutiny of the past several years. In University of Alabama v. Garrett (Oct. 11), a section of the Americans With Disabilities Act allowing private lawsuits against state governments is at stake. Some observers say this will be a repeat of last term’s case invalidating a similar section of the Age Discrimination in Employment Act, in which the Court held 5-4 that Congress did not have the authority to make the states subject to age-discrimination suits. Advocates for the disabled are holding on to the hope that the Court’s 1999 decision favoring mentally ill patients indicates a soft spot for the ADA. But it’s Browner, brought by the American Trucking Associations and other business groups, that is garnering the most attention from legal observers this year-particularly because the Court will take on congressional power from a different angle: Browner asks whether the EPA has usurped lawmakers’ authority to decide the nation’s air quality standards. That’s the view taken by Judge Stephen Williams in a 2-1 decision of the U.S. Court of Appeals for the D.C. Circuit. Williams in the May 1999 decision invoked the rarely cited “nondelegation doctrine,” which says Congress may not delegate its legislative duties to an executive branch agency. Williams struck down the air quality rules, finding that the EPA had not articulated any congressionally mandated principles guiding the rule making. Foes of the nondelegation doctrine claim the theory is outdated and poses a threat to the administrative agencies across the board. “If the Stephen Williams approach holds up, we face a volcano” of litigation against other federal agencies granted policy-making power by Congress, says Georgetown’s Schotland. John Roberts, a Supreme Court litigator at Hogan & Hartson, takes a more positive view: “A revitalized nondelegation doctrine might force Congress to be more specific” the next time it grants policy-making authority to agencies like the EPA, he says. Beyond the government, the case has also attracted strong interest in business and environmental circles. Business groups have cheered-and environmental groups decried-the justices’ decision to determine, in a companion case, whether the Clean Air Act requires the EPA to consider costs to industries when developing air quality standards. The Browner cases will get two hours of oral argument-double the amount of time typically allowed-on Election Day, Nov. 7. -J.R. FIRST AMENDMENT For the first time in nine years, the Supreme Court has docketed a First Amendment case involving core free press rights of the media. And even though the Court has a long tradition of embracing freedom of the press, news organizations are worried about what will happen in Bartnicki v. Vopper (Dec. 5). At issue is whether the federal wiretapping statute barring disclosure of illegally intercepted communications can be used against the press. In the tangled dispute before the court, a Pennsylvania radio talk show host aired the taped contents of an intercepted cellular phone conversation between two teachers union officials during a strike. The damaging tape came to the radio station through an intermediary. The 3rd U.S. Circuit Court of Appeals said the law violated the First Amendment when applied to hold the media liable for the disclosure. But the Supreme Court, increasingly sensitive to personal privacy claims, could decide otherwise-a result that would have “enormous impact on the way journalists do their job,” says Lee Levine of D.C.’s Levine Sullivan & Koch, who represents the radio station. Invoking the Pentagon Papers case, Levine says journalists will shy away from important stories if they have to trace the source of their information all the way back to make sure it was legally obtained. Leading media lawyer Floyd Abrams of New York’s Cahill Gordon & Reindel is filing an amicus curiae brief on behalf of news organizations. Also on the First Amendment docket is Legal Services Corp. v. Velazquez (Oct. 4), an important test of congressional restrictions placed on federally funded legal services lawyers in 1996. The restrictions bar lawyers from challenging welfare statutes in litigation-a clear violation of the First Amendment and separation of powers, say opponents. But the Legal Services Corp., backed by the Clinton Administration, says 1991′s Rust v. Sullivan, which approved restrictions on what federally funded medical clinics could tell patients about abortions, governs the current case. In Brentwood Academy v. Tennessee Secondary School Athletic Association (Oct. 11), the question is whether the association, which governs public and private school scholastic sports, is a state actor-and as such, whether its restrictions on recruiting violate the First Amendment. Cook v. Gralike (Nov. 6), the next in a series of First Amendment cases looking at state election laws, will test the constitutionality of Missouri’s so-called scarlet letter ballot requirement. Missouri voters in 1996 passed a constitutional amendment ordering their Congressional representatives to work and vote for term limits. It also required new candidates for congressional seats to make a similar pledge. Members of Congress and candidates who did not cooperate would have the label “Disregarded Instructions on Term Limits” or “Declined to Pledge to Support Term Limits” placed by their names on the next election ballot. No label would be placed next to the name of candidates who favor term limits. The U.S. Court of Appeals for the 8th Circuit found the law to be a form of government-compelled speech that violates the First Amendment. -Tony Mauro POLICE POWERS The Court’s criminal law docket continues to focus on what happens before suspects are charged with crimes is still a hot topic at the Marble Palace. Along with Gail Atwater’s complaint that the police violated the Fourth Amendment when she was arrested for breaking a fine-only seat belt law, two of the most significant cases test the police’s purposes in searching and seizing. In Ferguson v. City of Charleston (Oct. 4), the Court will decide whether the Fourth Amendment allows a state hospital to work with police by reporting pregnant women who had tested positive for cocaine usage. The hospital told the women they would be charged with distributing cocaine to a minor unless they completed drug treatment programs. By a 2-1 vote, a panel of the U.S. Court of Appeals for the 4th Circuit found the police-hospital program constitutional because the health problems caused by maternal cocaine use outweighed the intrusion suffered by the women whose urine was tested for cocaine without their consent. In City of Indianapolis v. Edmond (Oct. 3), the court will decide whether police may set up a roadblock in which, while an officer checks licenses and registration, a drug-sniffing dog walks around the car to detect the presence of drugs. A panel of the 7th Circuit found, by a 2-1 vote, that this program violated the Fourth Amendment. In the majority decision, Judge Richard Posner compared the roadblocks to the government’s setting up a metal detector outside of everyone’s home to make sure no one was carrying an impermissible weapon. Such searches, Posner wrote, “invade privacy wholesale in order to discover evidence of crime.” Court watchers have offered mixed assessments of Ferguson and Indianapolis. Theodore Olson, a D.C.-based Gibson, Dunn & Crutcher partner who’s a frequent advocate before the Court, says in both cases, “The test may come down to whether the purpose of the program was reasonable.” Tracey Maclin, a law professor from Boston University, suggests the Court will uphold the Indianapolis roadblocks. He notes that in 1996, the court unanimously upheld the constitutionality of police stopping cars on the pretext of a traffic violation but in fact as a way to see if the drivers were carrying drugs. The government will have a tougher case in Ferguson, says Maclin, in part because many medical groups argue that the drug testing may deter women from seeking prenatal medical attention. The biggest case outside the Fourth Amendment area appears to be Texas v. Cobb (Dec. 6), which asks whether a burglary defendant’s right to counsel attaches to questioning, more than a year after the burglary count was resolved, in a related murder. -J.R. BUSINESS AND CIVIL LAW The business community has its eyes on the EPA and Solid Waste cases, considering the possibility they will strike significant blows against government regulation. But some of the biggest business battles deal with how companies resolve disputes without government help. In three cases, the Supreme Court could make significant changes in whether companies may require employees or consumers to settle disputes via arbitration, and not the courts. Circuit City Stores v. Adams(Nov. 6) deals with that question in an employment context, confused by contradictory language and precedent dating back 75 years. The Federal Arbitration Act, passed in 1925, states that arbitration clauses are enforceable in all contracts “involving interstate commerce” except those regarding employment of “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Most circuit courts have interpreted the exceptions narrowly, but the 9th Circuit held in Circuit City that the Federal Arbitration Act exempts all employment contracts. If the 9th Circuit is reversed, “you might see entire industries removing themselves from the courts,” worries Laurie McAnn of the American Association of Retired People, which has filed an amicus brief supporting Saint Clair Adams, the former Circuit City employee suing the company. The U.S. Chamber of Commerce has filed amicus briefs on the side of Circuit City and Green Tree Financial Corp. in a separate case that asks whether arbitration clauses in lending contracts are enforceable if the costs of arbitration are not assigned in the contract. The Association of Trial Lawyers of America has taken the opposing side in Green Tree Financial Corp. v. Randolph (Oct. 3) as well as in Circuit City. In Eastern Associated Coal Co. v. United Mine Workers (Oct. 2), it’s the business side that is trying to move past its arbitrator. The company twice fired a truck driver after the driver failed drug tests, but binding arbitration forced the company to rehire the driver. “It puts the company in a difficult position,” says John Roberts, the Hogan & Hartson lawyer who represents the coal company, because the company could be held liable for accidents caused by a drug-impaired driver. The U.S. government has sided with the United Mine Workers of America, arguing that a victory for the company “would effectively render arbitration clauses unenforceable with respect to a substantial category of workplace grievances.” -JR

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