Big docket, and it may get bigger

As the US gears up to wage a protracted war against terrorism, civil libertarians are preparing for a different kind of war - a legal struggle here in the US to preserve America's most basic freedoms. The ultimate battleground in that war will be the US Supreme Court, which today begins its new term.

It is still too early to predict what role the nation's highest court will play in the unfolding drama. There are no cases currently on the docket that directly relate to the threat of terrorism. But it is only a matter of time, analysts say.

"We can be sure that litigation is going to come out of this," says Mark Tushnet, a constitutional scholar at Georgetown University Law Center in Washington.

In the meantime, with two potential landmark cases already on the docket, the court is showing no sign of seeking a lower profile in the wake of last year's controversial decision ending the 2000 presidential election.

Instead, it is full speed ahead as the justices prepare for the new term.

In addition to agreeing to decide the constitutionality of school-voucher programs and whether to declare a constitutional ban on capital punishment for the mentally retarded, the justices have agreed to resolve a wide range of other legal disputes.

The list includes an affirmative-action plan for minority contractors, attempts to regulate child pornography on the Internet, and whether private-property owners are entitled to compensation when their land is the subject of a temporary moratorium on development.

With 49 cases accepted so far, the court docket for the 2001-2002 term is still very much a work in progress, with the justices expected to grant appeals in 20 to 30 additional cases.

At this time last year, the court's most significant case in 2000, Bush v. Gore, wasn't even on the legal horizon. The same dynamic may come into play in months ahead, as the US braces for an all-out war on terrorism.

Legal analysts will be watching closely to see what role the high court may carve out for itself. Will the justices move to rein in possible government attempts to violate long-cherished civil liberties in the name of protecting national security? Or will they issue opinions that greatly expand the government's ability to identify and root out suspected terrorists?

The war on terrorism will likely involve a full range of other laws and constitutional protections. These include: the indefinite detention of aliens by immigration authorities working closely with the FBI, the ability to introduce foreign intelligence information as evidence in a US criminal trial, and rules surrounding when and to what extent surveillance may be conducted against suspected terrorists and those with whom they associate in the US.

Regardless of what happens on the terrorism front, the court's current term will be a significant one. At the top of the list of big cases is the Cleveland school-voucher case. The justices must determine whether the city's program of providing vouchers to low-income parents who turn the money over to parochial schools violates the separation of church and state.

Clint Bolick, a voucher advocate at the Institute for Justice, calls the case "the most important educational-opportunity case since Brown v. Board of Education."

Barry Lynn, of Americans United for Separation of Church and State, which opposes voucher programs, says the dispute is probably the most important church-state case of the past 50 years.

Also on the docket is a major death-penalty case involving Daryl Atkins, who in 1996 robbed a Virginia man of $260 and then shot him five times before stealing his truck. At issue is whether Mr. Atkins, who is described as mildly retarded with an IQ of 59, is intelligent enough to be held morally culpable for his actions.

Death-penalty opponents are hopeful that this case will offer the court a vehicle to declare a nationwide ban on the execution of mentally retarded convicts. To do so, a majority of justices would have to find that the practice violates contemporary community standards of what constitutes cruel and unusual punishment. Opponents say there is growing opposition across the country to executing the mentally retarded. Eighteen states and the federal government have passed laws banning capital punishment of the mentally retarded. In addition, 12 states and the District of Columbia outlaw the death penalty in all cases. The justices are sharply divided on the issue, and some analysts say the case may be decided with a 5-4 ruling.

Other cases before the court include a dispute in Owasso, Okla., over whether the practice of having schoolchildren grade one another's papers and then read the grades aloud violates the Family Education Rights and Privacy Act. The federal law requires that school records be kept confidential.