Supreme challenge

When the U.S. Supreme Court entered its fall term a year ago, its most important and controversial case wasn’t even on the horizon. The November 2000 election was still a month away, Bush v. Gore was still for the voters, not judges, to decide.

In contrast to that unanticipated development, the cases likely to define the 2001 fall term that begins this week are within view, though their precise form still is hazy. As a result of the Sept. 11 attacks and the consequent preparations for war against terrorism, this court almost certainly will be remembered for civil liberties cases not

yet on the docket.

Not that the current docket does not include enough important and controversial issues to ensure this court a place in legal history. Two cases in particular have the makings of landmark status.

The first, and most anticipated, is the Cleveland school-voucher case. After years of being tossed around lower courts, the high court now must determine whether that city’s program of providing vouchers to low-income parents who turn the money over to religious schools violates the separation of church and state. Advocates on both sides of the case agree it is the most important educational-opportunity case since the Brown v. Board of Education civil rights case of nearly a half century ago.

The second, Atkins v. Virginia, presents the court with the opportunity to revisit its 1989 ruling, by a 5-to-4 vote, that executing mentally retarded murderers does not necessarily violate the Constitution’s ban on cruel and unusual punishment. In this case, Daryl Atkins, who robbed and shot to death a Virginia man in 1996, was condemned to death despite being diagnosed as mildly retarded with an IQ of 59. Twelve years ago, only two states with capital punishment prohibited executions of the retarded, defined as persons with IQs of 70 or lower. Today, 18 states and the federal government have such a prohibition – death penalty opponents hope this trend and the Atkins case will combine for a nationwide ban.

Many other cases of the 49 accepted for consideration so far would be, in more normal times, a rich diet for legal scholars

and observers. They include affirmative-action preference for minority contractors, attempts to regulate child pornography on the Internet, compensation for private-property owners whose land is subject to moratoriums on development and a clash be-tween the federal law that guarantees the privacy of school records and the common practice of having schoolchildren grade one another’s work.

But these are not normal times. Defeating a network of well-funded, shadowy international terrorists will be difficult and complicated for many reasons, including the inevitable conflict enhanced national security will have with cherished civil liberties. Among the proposed laws and policies likely to spark litigation are the indefinite detention of aliens by immigration authorities in conjunction with the FBI, the ability to use information provided by foreign intelligence services as evidence in U.S. trials, and expanded rules regarding wiretaps and other surveillance measures used against suspected terrorists and their associates. The challenge to the Supreme Court in the coming months will be to see that the war against terrorism is won without losing the freedoms that make it worth fighting.