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On the lawn between the U.S. Capitol and the Supreme Court Monday morning, D.C. Congressional delegate Eleanor Holmes Norton pointed first to one marble building and then the other, assessing their relative importance. “Your rights are defended far more in that building,” she said, pointing to the Court, “than in the other one.” Norton was speaking at a rally of liberal and civil rights organizations timed to coincide with the opening of the Supreme Court’s 2000-01 term and aiming to focus voter attention on the Supreme Court as the No. 1 issue in the presidential election. Speaker after speaker predicted two, three, or four vacancies in the next four years. If they are filled by appointees of George W. Bush, the advocates said, precedents favoring abortion rights, affirmative action, civil rights, and environmental protection could all be swept aside. “I wake up in a cold sweat every morning,” said Ralph Neas to the crowd. Noting that the composition of the court has not changed in six years — the longest period of stability since the early 1800s — Neas of People for the American Way said, “We’re long overdue for a vacancy.” But you wouldn’t know that from looking at the justices as they appeared on the bench while the rally was under way. They looked as timeless and indestructible as ever. Justice Ruth Bader Ginsburg seems to have come through her colon cancer treatments successfully. Chief Justice William Rehnquist, who turned 76 on Sunday, was as businesslike and abrupt as ever, opening the session without a trace of fanfare or ceremony. Justice Clarence Thomas seemed as uninterested in the oral arguments as ever. And Justice Sandra Day O’Connor was first out of the gate with a question, as she often is. The Supreme Court was back in session after its three-month recess, operating as if it had never left — and as if this is not a presidential election year. As is its usual practice, the Court will sit on Election Day, a subtle symbol of its independence from the elected branches. The justices disposed of more than 1,600 cases that had piled up on the Court’s doorstep over the summer. Having granted certiorari in 12 cases last week, the justices didn’t add to its docket Monday. But in a series of orders, the Court made it clear that it meant what it said in several key rulings last term. For one, the first wave of “post-Apprendi” cases was turned back to lower courts for review in light of the Court’s June 26 decision in Apprendi v. New Jersey. The Court in Apprendi held that the Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. The Court also told the 11th U.S. Circuit Court of Appeals to re-examine its decision in Adler v. Duval County School Board in light of the high court’s decision in the Texas football prayer case, Santa Fe Independent School District v. Doe. The 11th Circuit had upheld a policy that allowed students to pick a student who could offer prayers or other messages at graduation ceremonies. The Court let stand a lower court decision that upheld the $5 billion award against the Exxon Mobil Corp., stemming from the 1989 Exxon Valdez oil spill. Other appeals stemming from the judgment are pending. The justices also declined to review an appeals court decision that said members of Congress had no standing to challenge last year’s NATO bombing of Yugoslavia. On Monday, the Court heard arguments in a key arbitration case, Eastern Associated Coal Corp. v. United Mine Workers. The coal company, citing public policy considerations, says the Court should set aside an arbitrator’s award that allowed a fired truck driver to return to work after testing positive for drugs two times in 15 months. But several justices seemed skeptical of the company’s claim, questioning how an arbitration award can be negated because of overriding public policy interests when the public policy at stake is unclear. “The force of the public policy” at issue, said Justice David Souter, “has to be very, very clear” before it can be invoked to break a contractual agreement. John Roberts Jr. of Washington, D.C.’s Hogan & Hartson, a lawyer for the coal company, said the policy at stake was very clear. He offered as examples ships and even airliners that were piloted by people under the influence of drugs or alcohol. It was a routine day, in short, at the nation’s highest court. Even as activists outside were worrying aloud about its future, the justices occupied themselves with the cases before them.
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