Magazine article New York Times Upfront

Decisions, Decisions: This Fall, the Supreme Court Will Hear Cases That Could Have a Major Impact on American Life. Here's a Look at Key Constitutional Issues They're Likely to Consider

Magazine article New York Times Upfront

Decisions, Decisions: This Fall, the Supreme Court Will Hear Cases That Could Have a Major Impact on American Life. Here's a Look at Key Constitutional Issues They're Likely to Consider

Article excerpt

PRESIDENTIAL POWER & NATIONAL SECURITY

Since the nation's founding, the U.S. has debated how much power a President should have, and how to balance national security with individual liberty, especially in a time of war. But the terrorist attacks on Sept. 11, 2001, transformed that debate as the U.S. found itself at war not with another nation, but with a stateless organization.

In general, the courts have not been eager to second-guess presidential actions taken in the name of protecting the nation. In 1944, for example, in a decision now widely discredited, the Supreme Court upheld President Franklin D. Roosevelt's executive order during World War II to put 120,000 Japanese-Americans in internment camps.

Today, the big issue is the prison at Guantanamo Bay, Cuba, which President Obama has promised to close by January. Guantanamo holds about 200 men who were captured all over the world, including some of the alleged ringleaders of the 9/11 attacks.

"In inheriting Guantanamo, the administration is inheriting something like the Japanese internment camps," says Eric M. Freedman, a law professor at Hofstra University.

Last year, the Court said the Guantanamo detainees are entitled to at least some of the constitutional protections generally accorded to the accused. And the Obama administration says that some of them should be released, but the process of dosing the prison and deciding where the more dangerous prisoners should go is moving slowly. If no other country will take them, the Court has been asked to decide whether they must be released into the United States.

Legal experts say the Court may look to history in considering how much power President Obama should have in the ongoing fight against terrorism. To do that, the Justices may have to decide whether the terrorist threat will be handled by the criminal courts or the military justice system.

"It is a hybrid warrior we're fighting in a hybrid war," says Glenn M. Sulmasy, a national-security law expert at the Coast Guard Academy, "and it doesn't fit neatly in the criminal justice structure or in the law-of-war structure."

RACE

Race has long been one of the most difficult issues for the Court, as it has for the nation. In recent years, many cases have centered on the constitutionality of affirmative action, in which race (or gender) is considered in hiring and school admissions. In general, proponents of affirmative action say it's needed to make up for past discrimination, while opponents say it's reverse discrimination.

The Roberts Court has been skeptical of race-conscious decisions by the government in cases about education, employment, and voting. In an important 2007 decision, the Court ruled that public schools cannot explicitly take race into account to achieve or maintain integration.

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Chief Justice John G. Roberts wrote in that ruling.

The Court applied the same principle in June, ruling 5-to-4 that New Haven, Connecticut, could not throw out the results of a promotional exam for firefighters because black firefighters did poorly on it. The case, Ricci v. DeStefano, was brought by white and Hispanic firefighters who did qualify for promotions but were denied them, and said they were victims of reverse discrimination.

"This decision will change the landscape of civil rights law," says Sheila Foster, a law professor at Fordham University in New York.

Such decisions have prompted some to wonder if the Roberts Court might be moving toward effectively abolishing affirmative action and similar programs in the near future.

That's what Justice Stephen G. Breyer seemed to hint at when he wrote his dissent in the 2007 case that ended the use of race by school districts trying to maintain integration. Referring to the landmark Brown v. …

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