Hewing to the pattern of recent years, the US Supreme Court is
poised to hear cases that will tidy up several legal questions,
rather than engage in the kind of sweeping constitutional
controversies that occupied it 30 years ago.
"This is a court that is most comfortable when making lawyer's
law," says Michael Dorf, a professor of constitutional law at
Columbia University Law School in New York.
Despite its penchant for legal nitty-gritty, several important
issues will occupy the docket of the nation's highest court,
* Whether school officials may be held liable for their failure to
stop the sexual harassment of one student by another.
* Whether the Constitution permits use of statistical sampling to
help complete the US census rather than relying entirely on an
* Whether racial gerrymandering was a factor in drawing boundaries
for a North Carolina congressional district.
* Whether a Chicago loitering ordinance is a valid tool in
fighting street gangs.
"You almost get the sense of them enjoying disagreements over what
it means to carry a firearm in a way they don't enjoy disagreements
over hot-button issues like racial discrimination or abortion," says
Mark Tushnet, a professor at the Georgetown Law Center in
Washington, says the new term may mirror the style of the 1997 term.
"As with last year," he says, "they seem to be interested in
technical issues, in mopping up statutory details."
The docket is only partly in place, and Dorf, Mr. Tushnet, and
other analysts stress there is plenty of time for the justices to
agree to hear additional cases, including several pending appeals
that could become vehicles for major decisions.
They include a Wisconsin voucher program that permits the use of
public funds to pay parochial-school tuition for low-income
state bans on late-term abortions, and the regulation of tobacco by
the Food and Drug Administration. Also, a Cincinnati campaign-
finance-law appeal would provide an opportunity to revisit the
landmark 1976 decision Buckley v. Valeo, the primary reform law,
which critics say has made it all but impossible to pass meaningful
campaign-finance restrictions. In addition, there are appeals
involving affirmative action, gay rights, habeas corpus
and prison litigation reform.
"There are so many cases crying out for interpretation," says Ira
Robbins, a law professor at American University's Washington College
of Law. "It is necessary to give guidance not only to litigants and
lawyers but to the lower federal courts."
He says he is particularly troubled by the Supreme Court's refusal
so far to clarify recent laws aimed at restricting habeas corpus
petitions, requests from someone in custody for intervention by a
court. "If Congress intended to get habeas cases and death penalty
cases speeded up, the Supreme Court may be thwarting that purpose by
not giving us national interpretations of key provisions," he says.
Ironically, the one constitutional issue currently on everyone's
mind in Washington - impeachment - is completely out of the hands of
the Supreme Court. The key question of what constitutes "high crimes
and misdemeanors," and whether President Clinton violated any of
them, is up to Congress, not the justices of the Supreme Court. …