Supreme Court Faces 9/11 Cases and Other High Profile Issues in a Term Destined to Produce Landmark Decisions

October 3, 2002 12:00 am

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Statement of Steven R. Shapiro, ACLU National Legal Director


WASHINGTON–This year may well mark a historic Supreme Court Term, as the Justices face a host of high profile issues, including the first wave of post-9/11 litigation, campaign finance, cybercensorship, affirmative action and gay rights. Some of these cases are already on the docket; others are quickly working their way toward the Court.

Of the various post-9/11 cases, two challenging the government’s policy of secret deportation hearings are furthest along in the pipeline, and the ACLU is involved in both. On August 26th, the Sixth Circuit declared the challenged policy unconstitutional in Detroit Free Press v. Ashcroft. On September 17th, the same issue was argued before the Third Circuit in North Jersey Media Group v. Ashcroft. If the Third Circuit agrees with the Sixth Circuit, the government is likely to petition for certiorari. If it disagrees, there will be a clear circuit split.

The chances are also good that the always controversial issue of campaign finance will reach the Court later this Term. In McConnell v. FEC, a broad coalition of groups, including the ACLU, has challenged the constitutionality of the Bipartisan Campaign Reform Act enacted by Congress last spring. The case is being heard on an expedited basis by a special three-judge court in the District of Columbia, which has scheduled argument for December 4th. Its decision can then be appealed directly to the Supreme Court, which will be asked to resolve, among other things, whether Congress violated the First Amendment when it prohibited organizations like the ACLU from broadcasting ads on issues of political significance if those ads mention a candidate within 60 days of a general election or 30 days of a primary.

The McConnell appeal is almost certain to produce the Court’s most comprehensive review of campaign finance regulation since its 1973 landmark decision in Buckley v. Valeo. For that reason, the Court might be tempted to consolidate McConnell with Landell v. Sorrell, assuming the timing works out. In Landell, another ACLU case, a Second Circuit panel recently upheld Vermont’s campaign expenditure limits in direct opposition to one of the core holdings in Buckley. A petition for rehearing en banc is now before the Second Circuit.

Given past practice, it would be surprising if the Court did not accept the government’s appeal in United States v. American Library Association, 02-361, just as it has done when prior congressional efforts to censor the Internet were declared unconstitutional by the lower courts. This time, a three-judge court in Philadelphia ruled that libraries could not be required to install Internet filters as a condition of federal funding. The ACLU is co-counsel in that case.

In addition, the ACLU is co-counsel in a closely watched battle over the use of affirmative action at the University of Michigan. Thus far, the Sixth Circuit has upheld the University’s admission policies at the law school; a challenge to similar policies at the undergraduate level is still pending. Opponents of affirmative action have asked the Supreme Court to review the law school ruling, Grutter v. Bollinger, 02-241, and to bypass the Sixth Circuit in the undergraduate case, Gratz v. Bollinger. More broadly, they are seeking to overturn the principle so forcefully articulated by Justice Powell in Bakke that public universities have a compelling state interest in promoting their educational mission through a diverse student body.

Finally, in Lawrence v. Texas, 02-102, the Court has been asked to revisit the constitutionality of consensual sodomy laws targeted at gays and lesbians. The ACLU was counsel in Bowers v. Hardwick and has supported this effort to reject that legal low point in modern gay rights history.

If accepted for review, these cases will join several other direct ACLU cases on the Court’s docket this Term. On November 5th, the Court will hear argument on the constitutionality of California’s “three-strikes” law in Lockyer v. Andrade, 01-1127. The defendant in Andrade was sentenced to life imprisonment under the “three-strikes” law following a conviction for shoplifting. Andrade will be argued in tandem with Ewing v. California, 01-6978, which raises similar issues but on direct appeal rather than habeas corpus.

On November 13th, the Court will hear argument in two cases testing the limits of the legislative response to sex offenders, an issue that has appeared almost annually on the Court’s recent docket. The question in Connecticut Department of Public Safety v. Doe, 01-1231, an ACLU case, is whether the state is under any obligation to distinguish between individuals who pose a future threat of dangerousness and those who do not before it indiscriminately posts their names and pictures on an Internet site intended to alert local communities to potential predators in their midst. In Smith v. Doe, 01-729, where the ACLU has filed an amicus brief, the question is whether the registration and notification requirements of Alaska’s broadly written sex offender statute violate the Ex Post Facto Clause.

In Demore v. Kim, 01-1491, to be argued in January, the ACLU will defend the consensus view of the lower courts that Congress violated due process when it insisted, as one of the 1996 changes in the immigration law, that aliens subject to deportation based on certain past convictions must be detained regardless of their individual circumstances pending the final outcome of their deportation hearings. And, in Virginia v. Black, 01-1107, the Court will consider the constitutionality of a cross-burning statute that was struck down by the state supreme court. The statute effectively bans every act of cross-burning by presuming that it was done with an intent to intimidate, even if it occurred in the midst of a political rally.

Other cases on the Court’s early docket that bear watching are:

  • Scheidler v. NOW, 01-1118 (whether federal extortion law reaches unlawful conduct of abortion clinic protestors).
  • Chavez. v. Martinez, 01-1444 (whether the Constitution prohibits coercive interrogation even if statements obtained as a result of that interrogation are never introduced in court).
  • Washington Legal Foundation v. Legal Foundation of Washington, 02-1325 (whether the Takings Clause prohibits the state from using interest in IOLTA accounts to fund legal services when those funds would not otherwise generate any net interest gain for individual clients whose funds are deposited).
  • Nevada Department of Human Resources v. Hibbs, 01-1368 (whether Congress validly abrogated the Eleventh Amendment by authorizing suits against the state under the federal Family and Medical Leave Act).
  • Eldred v. Ashcroft, 01-618 (whether the Copyright Clause limits the ability of Congress to extend the copyright period to 95 years by successive increments).

For more information on the 2002 Supreme Court term, visit: /court/courtmain.cfm.

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