- The Washington Times - Monday, May 12, 2003

Supreme Court justices last week put behind them seven months of courtroom arguments and now face less than seven weeks of arguing among themselves to thrash out the 33 remaining decisions before summer recess.

Constitutional questions still on the table include whether governments may do the following:

• Outlaw sodomy only among homosexuals.

• Favor certain races for college admissions.

• Censor library computers to shelter children from pornography.

• Gag a company so that it cannot contest political attacks.

The court next meets May 19, and then at least once every week until its final scheduled business day, June 26.

But the adjournment date is far from certain. One potential complication is a complex campaign-finance decision, a mountainous 1,638 pages of opinions and orders from a deeply divided special three-judge court. The justices must decide whether to postpone the effect of the lower-court decision or the law itself, and whether to yield to pressure to hold a special summer session on the case.

Prospects for speedy action on campaign finance, which also is likely to split the high court, would be sharply curtailed if any justice decides this is the year to retire from the most stable nine-justice court ever. The court’s roll call has not changed in nearly nine years. The record for stability is 11 years and one month as of March 18, 1823, when the court had seven members.

Any confirmation fight would become even more contentious with such a high-stakes political law awaiting a verdict. Justices are traditionally loath to proceed on such a high-profile case with only seven or eight votes on the bench.

In its already significant 2002-03 term, the court has produced 41 written opinions.

On criminal matters it upheld the so-called Megan’s laws, which permit posting identities of sex offenders on the Internet, allowed 25-to-life sentences for relatively minor offenses when they are “third strikes,” and permitted states to outlaw cross-burning meant to intimidate.

In noncriminal cases, the court blocked use of federal antiracketeering law to sue abortion protesters, and generally limited punitive damages in personal-injury lawsuits to no more than nine times the basic compensatory award.

The University of Michigan affirmative-action cases could produce the ruling that becomes a signature decision for “the Rehnquist court.” Some analysts expect the justices to stop short of saying that race never can be a factor while declaring the university’s undergraduate point system unconstitutional and perhaps allowing its law school’s more-flexible range of percentage “goals,” which critics condemn as quotas.

The library Internet case is but the latest congressional effort to shelter children from exposure to pornography that is legal for adults. The court generally has been moderate in its approach to material not targeted at children in previous cases involving cable television, e-mail and Web site postings.

The sodomy case tests a Texas law that applies only to homosexuals, unlike the Georgia law upheld in the 1986 Bowers v. Hardwick decision. That law had a “general application” because it affected everyone. The homosexual-sodomy laws of three other states depend on the fate of the Texas statute, used to arrest two men found in bed together by officers who arrived to investigate false reports of a crazy man with a gun.

The free-speech case challenges a California state Supreme Court decision that Nike was liable for “false advertising” because of its statements in response to critics who targeted the sporting-goods maker as “the poster child for the evils of globalization.”


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