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The highly emotional social issues — abortion, gay rights, and church-state separation — that so deeply divided the Supreme Court on the final day of this term are absent so far from the justices’ fall schedule. But the upcoming docket poses other difficult questions. In particular, the Court has found some puzzling new problems involving the limits on congressional power, the scope of free speech, and the practices of the police. For several months to come, the Court will be making news for reasons other than jurisprudence. The next term begins Oct. 2, just five weeks before the presidential election. Although the justices are unlikely to issue any major new decisions before Election Day, the future direction of the Court is already becoming a campaign issue. The quadrennial political spotlight may well pause on the 2000-2001 docket. Among cases already granted review, some sound familiar themes for the Court, which will enter its 15th year of stewardship under Chief Justice William Rehnquist. Once again, the justices will debate the Constitution’s limits on the long arm of Washington. The scope of state sovereign immunity and the authority of Congress to make states subject to lawsuits are issues that have deeply divided the justices in recent years. In University of Alabama Board of Trustees v. Garrett, No. 99-1240, the Court will decide whether, in passing the Americans With Disabilities Act (ADA) in 1990, Congress had the authority under Sec.5 of the 14th Amendment to abrogate the sovereign immunity of states under the 11th Amendment. Back in January, the Court had ruled 5-4 that Congress did not validly waive state sovereign immunity under the federal Age Discrimination in Employment Act. Less than two weeks after that ruling (in Kimel v. Florida Board of Regents), the Court agreed to hear two cases examining state liability under the ADA. But those cases settled at the urging of disability rights advocates, who feared a loss in the high court. Since the issue of state liability for violating the rights of disabled people under the ADA has arisen with some frequency in federal appeals courts, the justices had no difficulty finding another vehicle. This case comes from the U.S. Court of Appeals for the 11th Circuit, which reversed a grant of summary judgment for the University of Alabama. Constitutional limits on the power of both Congress and the executive branch are at issue in Browner v. American Trucking Associations, No. 99-1257. The case involves the important, but rarely cited, nondelegation principle that Congress cannot confer its own legislative authority on executive agencies. The D.C. Circuit ruled that the Environmental Protection Agency improperly exercised legislative power when it adopted tough new regulations for ozone and soot under the Clean Air Act. The court said that the EPA’s interpretation of its authority under the act was so broad that it was as if Congress had delegated its lawmaking function. The case is generating enormous interest because it could scale back the entire federal regulatory system. Even if the case were only an environmental dispute, the issues would be of great importance to industry, which is seeking eased air quality standards, and environmentalists, who are concerned that pollution levels will be allowed to rise. Indeed, the high court raised the environmental stakes by later agreeing to hear the related appeal of American Trucking Associations v. Browner, No. 99-1426, which addresses the role of cost-benefit analysis in setting Clean Air Act standards. The Court will hear arguments that the EPA has considered only the benefits to public health, not the costs of implementation. In yet another regulatory dispute, the Court will look once again at the reach of the federal power to regulate interstate commerce. The issue comes up in an unusual setting — an assertion by the U.S. Army Corps of Engineers that it has jurisdiction over a proposed landfill outside Chicago. The site, where some local communities want to dump solid waste, contains inland waters that have become home to migratory birds. The 7th Circuit ruled that the Clean Water Act gives the Corps authority over intrastate waters where migratory birds are present and that this is a proper exercise of Congress’ power to regulate interstate commerce. The case is Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, No. 99-1178. YOU TALKIN’ TO ME? In another area of ongoing concern, the applications of federal and state statutes raise significant First Amendment issues for the Court next term. In Bartnicki v. Vopper, No. 99-1687, and United States v. Vopper, No. 99-1728, the justices face the question of whether individuals can be sued for damages for revealing the contents of telephone calls that were illegally overheard and recorded by other individuals. The 3rd Circuit ruled that federal and Pennsylvania wiretapping laws violate the free speech guarantee of the First Amendment when used to impose liability on people who did not themselves illegally intercept phone conversations. The case is of particular importance to the news media, which sometimes receive and disseminate information that may have been obtained by third parties through questionable means. The 3rd Circuit relied on a line of Supreme Court decisions refusing to punish the publication of truthful material that was not illegally obtained by the publisher. But the D.C. Circuit reached the opposite result in a similar case. Now the Supreme Court will try to resolve the conflict. The high court will also decide whether Congress may prohibit the use of Legal Services Corp. funds to try to change existing welfare rules. The 2nd Circuit held that Congress violated the First Amendment in 1996 when it barred LSC lawyers from taking on welfare clients to challenge welfare rules. The court said that this provision — which was part of a larger set of restrictions, most of which were upheld — was unconstitutional viewpoint discrimination because it singled out those who argued against the status quo. The related cases are LSC v. Velazquez, No. 99-603, and United States v. Velazquez, No. 99-960. Another case with First Amendment implications plunges the Court into the political thicket and indirectly back into the debate over term limits. In Cook v. Gralike, No. 99-929, the justices will examine a voter-initiated amendment to the Missouri Constitution that required the state’s congressional delegation to either support a term-limits amendment to the U.S. Constitution or be labeled on future ballots as having “disregarded voters’ instruction on term limits.” The 8th Circuit ruled that the Missouri amendment violated the First Amendment, as well as the Article I protection for legislative “speech and debate” and other provisions. SEARCHING LOOKS On the criminal side of the docket, the justices also have a number of interesting disputes. Once again, the spotlight is on the Fourth Amendment. In Indianapolis v. Edmond, No. 99-1030, the Court will look at police roadblocks on city streets. The 7th Circuit suggested that such roadblocks might be valid if justified to promote traffic and highway safety. But Indianapolis used the roadblocks to try to find evidence of criminal drug use. Because it was not based on any individualized suspicion, this practice violated the Fourth Amendment protection from unreasonable search and seizure, said the 7th Circuit. In Ferguson v. Charleston, No. 99-936, the high court will step into the emotional debate over prosecuting pregnant women who use drugs or engage in other practices that might endanger their babies. The Court will review the practice at a Charleston public hospital of testing pregnant patients suspected of cocaine use and then turning the results over to police if the test comes back positive. The 4th Circuit upheld the practice, finding the tests justified under the Fourth Amendment. Finally, the Court will decide, in Atwater v. Lago Vista, Texas, No. 99-1408, whether the Fourth Amendment limits police authority to arrest people and take them into custody for offenses that are punishable only by fines. In this case, the person was arrested for failure to wear a seat belt. The 5th Circuit found that the arrest was not an unreasonable seizure under the Fourth Amendment. That’s nine interesting cases to begin observing the 2000-2001 term. The justices have actually granted review in some 34 cases so far. As they add more, possibly during the summer, or more likely in September, the political process will surely be ratcheting up its scrutiny of the Supreme Court. Stephen J. Wermiel is associate director of the Program on Law and Government at American University Washington College of Law, where he teaches media law, constitutional law, and a seminar on the Supreme Court.

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