Monday, May 21, 2018
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Supreme Court decisions reflect assertions on terrorism

Every term of the U.S. Supreme Court produces at least a few landmark rulings, but the 2003-2004 term that ended Tuesday was among the most consequential in recent years.

Not only did the court assert its authority over the post-Sept. 11 war on terrorism, ordering the Bush administration to provide due process to enemy combatants whether they were citizens or not, it upheld the McCain-Feingold campaign reform act, the most dramatic change in election law in a generation; blocked the Child Online Protection Act, Congress' attempt to protect children from pornography on the Internet; and told the 50 states that they must dance to the court's tune in several areas, including the sentencing of convicted criminals.

Even the term's most notable non-decision had weighty consequences. After listening to California atheist Michael Newdow argue that his daughter's school had violated the First Amendment by having children pledge allegiance to "one nation under God," the court by a 5-3 vote dismissed his lawsuit because Mr. Newdow didn't have legal custody of the child. In declining to decide whether "under God" was an unconstitutional establishment of religion, the court put off the question for another day - guaranteeing that its holding wouldn't become an issue in an election year.

Sometimes the court pleased liberals and sometimes conservatives. But seldom was the court shy about asserting its authority.

"Last term the Supreme Court disappointed conservatives by upholding affirmative action and striking down sodomy laws, and this term it disappointed liberals by refusing to strike down the Pledge of Allegiance," said Jeffrey Rosen, an associate professor at George Washington University Law School. "What unites the court's swinging back and forth between left and right is a determination to defend its own power and prerogative."

The court's most striking assertion of its authority came at the end of the term in three terrorism-related cases.

The justices ruled 8-0 that Yaser Hamdi, a U.S. citizen accused of terrorist ties, had the right to contest his detention as an enemy combatant before what Justice Sandra Day O'Connor called a "neutral decision-maker." In a separate 5-4 decision, it dismissed a similar suit by Jose Padilla, another U.S. citizen held as an enemy combatant, because he filed a petition in the wrong federal court, but he will be able to refile. Finally, by a 6-3 vote, the court held that foreign enemy combatants detained at the Guantanamo Bay Naval Base in Cuba also could challenge their confinement.

Legal observers agree that the terrorism decisions were an embarrassment for the Bush administration. Justice O'Connor wrote in her Hamdi opinion that "we necessarily reject the government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances." The court did not indicate that it was about to abandon its deference to the executive branch when it came to purely military operations.

"If the question is whether it's OK to start bombing, the court will stay out of it," said Eugene Volokh, a constitutional expert at the UCLA School of Law, "The courts have always stayed out of it and they will continue to stay out of it." By contrast, Mr. Volokh said, the treatment of two U.S. citizens still in custody almost two years after the Sept. 11, 2001, attacks "involves a sufficient claim of individual rights and a sufficient tradition of judicial supervision" that the court felt entitled to intervene.

Although liberal and conservatives found various of this term's decisions to their liking, conservatives found one of their pet causes - greater autonomy for the states - in retreat.

In May the court, over the dissents of its most conservative members, ruled that states are not immune to private lawsuits for damages for violation of the Americans with Disabilities Act. The case involved a man in a wheelchair who had to crawl up a flight of steps in a Tennessee courthouse because the building lacked an elevator.

Coming after a decision last term upholding the right of state employees to sue under the Family and Medical Leave Act, the disability case seemed to end the "federalism revolution" inaugurated in 1995 when the court said that Congress encroached on the authority of the states by enacting a law against bringing guns on to school property.

Richard W. Garnett, a professor at Notre Dame Law School, told a seminar at the American Enterprise Institute last week that this term should end talk of a "federalism revolution" on the Supreme Court. "In my view, unfortunately, if there ever was such a revolution, it's now over and indeed is in full retreat,"Mr. Garnett said.

But Mr. Volokh said it was a mistake to talk about either a "federalism revolution" or the undoing of such a revolution.

"For decades the assumption was that the federal government is not at all constrained by federalism," Mr. Volokh said. "And then along came a few cases in which the court did impose some relatively modest federalism principles on the government and then people started to say, 'Oh my God, there's this federalist absolutism.' Not at all. The law was shifted from 100 percent federal power to 95 percent federal power. And so what happens is that there are a lot of cases that are within the 95 percent."

The Block News Alliance consists of The Blade and the Pittsburgh Post-Gazette. Michael McGough is a reporter for the Post-Gazette.

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