Supreme Court Term Could Bring Seismic Shifts in American Politics, Post-9/11 Criminal Law

ACLU Supreme Court Preview: 2003 Term

Statement of Steven R. Shapiro, ACLU Legal Director

FOR IMMEDIATE RELEASE

WASHINGTON – An array of cases involving elections and post-9/11 law enforcement could bring about major shifts in the American political and criminal justices systems by the end of the 2003 Supreme Court Term.

In the area of elections, two cases this year – involving campaign finance and partisan redistricting – could have as great an impact on the American political system as any decision since the “one man, one vote” rule was announced almost four decades ago. The chances are also good that the first 9/11 cases will reach the Supreme Court before the Term ends. The docket is already heavily loaded with criminal cases that take on a new significance in the post 9/11 era, including several that focus on the meaning and scope of the Miranda warning against self-incrimination.

There are also looming free speech battles over the Internet, as well the government’s effort to prohibit doctors from advising their patients about the benefits of medical marijuana. In addition, the Court could be thrust back in the middle of the culture wars if it agrees to enter the fray over the Pledge of Allegiance, although it did not grant certiorari as many had anticipated at its first conference. Even if it does not review the Pledge decision, the Court will hear at least one important church-state case this year.

And, in what has now become almost an annual exercise, the Court will consider the conflict between states’ rights and federal civil rights enforcement in several important cases.

The Supreme Court year got off to an early and dramatic start when the Court heard four hours of argument on the constitutionality of the McCain-Feingold campaign finance reform law in a rare special session on September 8. The law was challenged in 12 separate appeals, including one by the ACLU, that followed a 1700-page splintered decision by a three-judge district court.

The case centers on two key provisions of the statute designed to prohibit soft money and restrict issue ads. The ACLU brief focuses on the issue advocacy restriction, arguing that its broad reach would prohibit even the ACLU and similar organizations from commenting on important public policy issues that arise in the period immediately preceding an election. If upheld, these restrictions would “dramatically transform the rules of political debate in this country and go far beyond anything [the] Court has ever permitted under the First Amendment,” as our brief states. Because of the imperatives of the political calendar, a ruling in McConnell v. FEC (02-1674) is widely expected before the Court recesses on December 15.

A case that has received much less attention but may prove equally significant in the long run is Vieth v. Jubelirer (02-1580). In 1986, the Supreme Court ruled that the Constitution imposes some restraints on the ability of elected state legislators to use the congressional redistricting process for partisan political advantage. But the standard articulated by the Court was so vague and unworkable that it has proved virtually meaningless. Politicians from both parties have taken advantage of sophisticated computer software to gerrymander districts along political lines with little fear of judicial intervention. As a result, fewer than 10 percent of congressional elections in any given year are now considered competitive. In a brief filed with the Brennan Center, the ACLU urges the Court to hold, at a minimum, that the Constitution does not permit a redistricting scheme designed to ensure that a minority of voters controls a majority of seats.

Last Term, the Court managed to avoid the civil liberties controversy swirling around the Administration’s response to 9/11 by declining review in two ACLU cases. The first had to do with the government’s increasingly aggressive use of foreign intelligence wiretaps to avoid traditional Fourth Amendment safeguards; the same issue is now being litigated by the ACLU and others in the context of motions to suppress in specific criminal prosecutions. The second case had to do with the constitutionality of a government policy that led to more than 600 secret deportation hearings based on the unilateral decision of the Attorney General. This year, it will be harder for the Court to remain uninvolved.

A coalition of civil rights groups that includes the ACLU has filed a petition for certiorari in CNSS v. Department of Justice, challenging the government’s refusal under the Freedom of Information Act to release the names of more than 700 predominantly Muslim men who were secretly arrested on immigration charges after 9/11. The issue of “enemy combatants” will shortly be before the Court: a petition for certiorari is due next week in Hamdi v. Rumsfeld, a habeas action filed on behalf of an American citizen who has been held incommunicado in a military brig for more than a year without charges, trial, or access to counsel. Likewise, before the Term is over, the Court will almost surely be asked to review the parallel case of Jose Padilla, the second American citizen declared an “enemy combatant,” whose struggle to obtain due process is now pending before the Second Circuit.

Two petitions have also been filed on behalf of Guantanamo detainees. Thus far, the detainees have been denied any access to American courts on the theory that the American military base where they are being held is formally part of Cuba, even though it has been under the exclusive control of the United States for more than a century. Those cases are Al-Odah v. United States (03-343) and Rasul v. Bush, (03-334). And it is certainly possible, although by no means certain, that the government will ultimately seek certiorari if its refusal to allow Zacarias Moussaoui to interview Al Qaeda witnesses leads to the dismissal of criminal charges.

The Court’s significant criminal law docket this year inevitably takes on added significance given the government’s aggressive push for new law enforcement powers in the wake of 9/11. Those cases are described more fully in the accompanying statement of Susan Herman, ACLU General Counsel. Two Miranda cases, however, deserve special mention. In Missouri v. Siebert (02-1371), the issue is whether police can deliberately circumvent Miranda by interrogating a suspect without warnings and then inducing the suspect to repeat the confession after warnings are given. In United States v. Patane (02-1183), the issue is whether the prosecution can rely on physical evidence that was only discovered because of a confession elicited in violation of Miranda.

The government has already filed petitions for certiorari in two First Amendment cases brought by the ACLU, and decisions on those two petitions are expected shortly. In Walters v. Conant (03-40), the government is seeking the right to interfere with the doctor-patient relationship by barring doctors from honestly advising often terminally ill patients about the benefits of medical marijuana. The case, which is scheduled for conference on October 10, is described more fully in the accompanying statement of Graham Boyd, lead counsel and Director of the ACLU’s Drug Policy Litigation Project.

In Ashcroft v. ACLU (03-218), the Court has been asked to consider the constitutionality of the Child Online Protection Act for the second time in two years. On remand from the Supreme Court’s 2000 decision, the court of appeals once again ruled that the statute was unconstitutional. Among other things, the Third Circuit pointed out that the effect of the statute would be to deprive adults of the ability to access constitutionally protected material on the Internet, and therefore the statute suffered from the same constitutional flaw that had led the Supreme Court in 1997 to strike down a predecessor law in Reno v. ACLU.

This has the potential to be a very important year for church-state law, as well. In its recent school voucher decision, the Court held that the Establishment Clause allows a state to fund parochial school education through a voucher program that provides parents with genuine choice. Washington State has a general scholarship program available to qualified university students. It has decided, however, that those funds cannot be used by students who pursue a course of ministerial training. The lower court held that this policy decision violates the Free Exercise Clause, and the state has appealed in Locke v. Davey (02-1315). The ACLU is supporting the state. Our position is that state funding for ministerial training raises unique historical concerns, and that the Free Exercise Clause does not compel everything that the Establishment Clause might permit.

The stakes in Davey are high, but its public profile has been relatively low. By contrast, a decision by the Court to wade into the controversy over whether the words “under God” can constitutionally remain in the Pledge will cause a predictable firestorm. The companion cases of United States v. Newdow (02-1574) and Elk Grove Unified School District v. Newdow (02-1624) were originally scheduled for conference on September 29. What we know at this point is that certiorari was not granted. What we do not yet know is whether certiorari was denied or whether the decision was deferred for some undisclosed reason.

The Court’s ongoing federalism debate resumes this Term, as well. Hibbs v. Winn (02-1809), another ACLU case, raises those issues in the context of government support for religious schools. The question is whether the Tax Injunction Act prohibits the federal courts from enjoining an Arizona tax credit scheme designed to promote religious instruction.

In Tennessee v. Lane, the state contends that the Eleventh Amendment shields it from any claim for money damages under Title II of the Americans with Disabilities Act, which is designed to guarantee that people with disabilities have equal access to state services and facilities. In 2001, the Court ruled that the Eleventh Amendment bars employment discrimination claims against the state under Title I of the ADA. Last May, however, the Court ruled that the Eleventh Amendment does not bar damage actions against the state under the Family and Medical Leave Act. The unresolved question is whether the result in Hibbs was tied to gender discrimination or whether it represents a more general shift in the Court’s federalism jurisprudence.

Finally, in Frew v. Hawkins (02-628), the state is arguing that it did not waive its Eleventh Amendment immunity by voluntarily entering into a consent decree in this Medicaid Act case, and therefore the federal court supervising the consent decree lacks jurisdiction to enforce it, leaving the state free to ignore its terms with impunity.