The U.S. Supreme Court formally opens its new term Monday, and as always, some of the most pressing national controversies are on the docket, from the rights of detainees at Guantanamo Bay, Cuba, to a major constitutional test of gun owners' rights.
Last term ended with an explosion of conservative decisions by a newly constituted court. With two Bush appointees replacing two Reagan appointees, the court cut back on or effectively reversed prior decisions on abortion, campaign finance regulation, gender discrimination, and voluntary school desegregation. These were among the one-third of the cases decided by a 5-4 vote, and in each case, justice Anthony Kennedy was in the majority.
Writ of Habeas Corpus
This year, again, his vote is expected to be decisive in the court's biggest case, a test of the rights of Guantanamo detainees.
Among the prisoners before the court is a group of Bosnians who were arrested in their homes by Bosnian police shortly after the Sept. 11, 2001, attacks. The police acted at the behest of U.S. officials who said they had evidence that the six men were involved in a plot to blow up the U.S. Embassy. Bosnian authorities then joined with Interpol and U.S. Embassy officials to conduct a three-month investigation, at the end of which the Bosnian supreme court ruled that the charge was not supported by evidence and ordered the men released.
On the same day, an international tribunal staffed by several European countries issued an order forbidding the removal of the men from Bosnian territory. Nonetheless, the men were turned over to U.S. authorities and shipped to Guantanamo, where they have remained ever since, despite repeated statements from the Bosnian government that it is willing to take them back.
The detainees claim that they have the right to challenge their imprisonment in the U.S. courts, using the constitutionally guaranteed procedure called a writ of habeas corpus. Historically, the writ has been an important mechanism in safeguarding individuals from arbitrary state action. It guarantees a complete review by a neutral fact finder to ascertain whether the government has justifiably jailed someone. The Guantanamo prisoners contend there is no neutral fact finder at Guantanamo hearings, no way for the prisoners to rebut secret evidence, no lawyer to help them to secure evidence of their innocence, and that the legal standard presumes them guilty.
Congress, they contend, violated the Constitution, when it stripped them of the right to challenge their detentions in court after an earlier Supreme Court ruling that permitted them to do so. The Constitution, they note, provides for suspension of the writ of habeas corpus only in cases of invasion and rebellion, and even then requires an alternative system of basic due process rights.
The Bush administration, backed by a federal appeals court, counters that since the men are being held outside the United States, they have no constitutional rights. The detainees have adequate rights to appeal under the law passed by Congress when it stripped the detainees of the right of habeas corpus, the administration contends.
The Court's Reversal
The Supreme Court initially decided to stay out of the detainee cases this year, but the justices did a complete and nearly unprecedented reversal in June, deciding that they could wait no longer. The turning point may have been the submission of an affidavit from a military lawyer in the Army Reserve who was in charge of ensuring that exculpatory evidence was turned over to the tribunals at Guantanamo. Lt. Col. Stephen Abraham said in his affidavit that the information provided at the tribunals was often incomplete, dated, and inaccurate, and that even the officers serving on review panels at Guantanamo were not able to question or test it.
"It's not that the truth was never a goal," Abraham said. "But it was the first victim."
A Corporate Conspiracy
The Guantanamo cases may be the highest profile controversy facing the court this term, but there are other important cases — some involving individual rights, others involving billions of dollars, and some involving both.
One of those is a clash between investors and so-called third parties in a fraud case. Third parties are lawyers, accountants, banks and other entities that in some cases may help a company perpetuate a fraud. The case before the court involves a cable company named Charter Communications that is alleged to have deceived investors by conspiring with two of its vendors to make Charter's balance sheet look better than it was.
The question is whether not only Charter, but the vendors who allegedly backdated documents and took other direct action, can be sued for damages. And the outcome of the case will affect not just the Charter vendors, but also third parties involved in the Enron fraud and other big securities frauds.
Georgetown law professor Donald Langevoort says that this is the most important securities case in a decade, with a ripple effect in the billions.
"It's only a little bit of hyperbole to call this the securities law's Roe v. Wade," he said.
The Criminal Docket
Moving on to the court's criminal docket, there are a variety of death penalty cases. One is a test of whether the current use of three chemicals in lethal executions is unconstitutionally cruel and unusual punishment because other chemicals would cause less pain.
Another case pits the Bush administration against state courts that have refused to enforce an international treaty to which the U.S. is a signatory. In 2004, the International Court of Justice determined that 51 Mexican nationals were entitled to reconsideration of their convictions and sentences in the U.S. The Mexican Embassy had not been notified about their cases and given access to the defendants, thus depriving the accused of resources to aid in their defense, the international court ruled.
The consular notification provision was put into the treaty at the request of the United States in order to protect U.S. citizens when they are jailed while abroad. And President Bush eventually ordered the states to review the cases of the 51 men on death row to ensure that the states complied with the treaty. The Texas courts balked, ruling that the president had exceeded his constitutional authority. Now the Supreme Court is to decide the question.
On the election front, there are several cases, including a case testing whether voter ID requirements unfairly burden poor and minority voters.
The court also has big questions to resolve on sentencing. One that could affect tens of thousands of people involves the long-standing dispute over the wide disparity in punishment for crack versus powder cocaine crimes, when crack offenders are mainly black and cocaine offenders mainly white.
The disparity is 100 to 1, meaning that trafficking in five grams of crack brings a mandatory five-year sentence, while it takes 100 times that much powder cocaine to bring the same sentence. The question in the case before the court is whether a judge may consider these policy questions in reducing a sentence to the mandatory minimum and refusing to add on more time that is recommended under the advisory federal sentencing guidelines.
Handgun Ban and the Second Amendment
And finally, pending before the court is a major gun case. At issue is the District of Columbia's ban on handguns, which was struck down by a federal appeals court earlier this year. Lawyers for the District, and for gun owners have asked the court to review the decision. If the justices do, their eventual ruling would be the first on the Second Amendment to the Constitution since 1939.
The amendment says: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
Did the founders mean a collective right to bear arms, aimed at maintaining state militias, or an individual right to own a gun? When the court last ruled on this question 68 years ago, it seemed to side with the notion of a collective right. But in recent times, gun owners have gained new scholarly backing for the idea that the amendment was intended to apply to individuals.
Many, if not all of these cases, could be decided by 5-4 votes. Odds are the court's conservative majority will continue to close the courthouse door to civil rights and other plaintiffs, but that is a welcome trend in a business community that complains it is besieged by lawsuits. On the other hand, Supreme Court watchers predict that liberals may win a number of significant victories this term.
"The Guantanamo Bay case, the crack-powder case, the big cases that are on the court's docket all shape up as cases that the liberals have a much better chance of winning than almost anything from last term," says Tom Goldstein, a judicial scholar who teaches at Stanford and Harvard law schools.
That is, in part, a product of the issues the court will be resolving this term. There is no abortion case, no affirmative action case, no case involving separation of church and state. At least not yet.