Court Set for New Term and Novel Issues

The Supreme Court, keeping to business as usual, opens its new term this week facing familiar disputes over affirmative action and the death penalty as well as new cases involving “virtual” pornography, identity theft and the rights of workers with carpal tunnel syndrome.

On Monday morning, the justices will hear the first of 49 cases that are scheduled for argument this term, about half the total that will be heard and decided by summer.

Unlike the rest of official Washington, the court’s work is unlikely to be affected directly by the terrorist attacks of Sept. 11. The cases that will be heard this fall were chosen in the spring. And none of them appear to raise the issues of detaining immigrants, racial profiling or wiretaps, which have loomed large in recent days.

In retrospect, civil libertarians say they are relieved that some key legal issues were decided last term. In June, the court protected the rights of lawful immigrants in a pair of 5-4 rulings. Even those who face deportation have a right to plead their cases before a judge, the high court said. Congress had tried to close the courthouse door to these people.

In the second case, the court said the government does not have the power to hold deportable immigrants indefinitely.

Still another 5-4 ruling said that police may not use heat detectors or other high-tech devices to spy into homes unless they have a search warrant.

But the opinions in those cases include asides that seem quite significant now. In the decision rejecting indefinite detention of immigrants, Justice Stephen G. Breyer said he and his colleagues might take a different view should they face a case involving “terrorism or other special circumstances where special arguments might be made for forms of preventive detention.”

The heat-detector case involved an Oregon man who grew marijuana plants in his home. In dissent, Justice John Paul Stevens said it was not wise to broadly limit the government’s use of sophisticated detection devices. Suppose the case had involved “a new device that might detect the odor of deadly bacteria or chemicals for making a new type of high explosive,” he said.

The comments by Breyer and Stevens, coupled with close votes, suggest the court might not stand in the way if Congress expands federal powers to combat terrorism.

Child Pornography Laws Face Test

But for this term at least, the court will be grappling with existing laws, including those that recently expanded the government’s power to shield children from computer pornography.

* In 1998, Congress said there were about 28,000 pornographic sites on the World Wide Web, and they generated about $925 million in annual revenues. The 1998 Child Online Protection Act makes it a crime to “make available” on a commercial Web site “material that is harmful to minors.”

The Justice Department says Web sites can protect themselves from prosecution by requiring users to have credit cards or other adult access codes. But ACLU lawyers challenged the law as too broad and a violation of the freedom of speech. They represent, among others, a poet, the owners of a gay bookstore and the writer of a sexual advice column, all of whom said they had Web sites and feared prosecution if the law took effect.

A federal judge in Philadelphia blocked enforcement of the law, and the U.S. Court of Appeals there agreed that it infringed upon the 1st Amendment. The appeals court said the phrase “harmful to minors” in the law is vague, especially since its meaning may be different for a jury in Provo, Utah, than one in San Francisco.

The high court will hear the government’s appeal in the case of Ashcroft vs. the ACLU, 00-1293. Legal experts who have followed the issue say there is a good chance that the new law will be upheld. Four years ago, the justices rejected an earlier, much broader measure regulating the Internet. But because the current law is focused on commercial pornography, its chances are much improved.

* A second case tests the constitutionality of a child pornography law that extends to computer simulations of children engaged in sexual activity.

In the past, the court has said that child pornography deserves no free-speech protection because it arises from the sexual abuse of minors. But in 1996, Congress expanded the definition of child pornography to include “computer-generated images or pictures.”

The U.S. 9th Circuit Court of Appeals struck down this part of the law, saying that the 1st Amendment bars the prosecution of those who have sexually explicit “images of fictitious children.”

In its appeal, government lawyers say that this type of pornography whets the appetites of pedophiles (Ashcroft vs. Free Speech Coalition, 00-795).

* This term’s major workplace dispute concerns employees who suffer crippling work-related injuries, including carpal tunnel syndrome and back pain. At issue is the reach of the Americans With Disabilities Act.

Ella Williams, an assembly line worker for Toyota Motors, injured her wrists using heavy power tools. She was transferred to a less demanding job, but the wrist pain returned. When the company refused to move her to a third job, she quit and sued.

In Toyota Motors vs. Williams, 00-1089, the court will consider if the estimated 1 million workers with repetitive stress injuries are protected by the antidiscrimination law.

* A Los Angeles case gives the court its first look at identity theft. It could open the door to thousands of lawsuits against the major credit reporting firms.

Adelaide Andrews sued TRW for negligence for having wrongly cleared for credit another woman with a similar name who had stolen her Social Security number. TRW says Andrews filed her claim too late, after the two-year time period set by law. But she argued that the time clock for filing suits should have started ticking when she discovered the mistake, not when it occurred (TRW vs. Andrews, 00-1045).

* Another case before the high court questions the legality of a common practice: schoolteachers asking students to grade each other’s papers.

A small-town Oklahoma mother said her children were humiliated in class when their grades were called out, and she sued. She won in the U.S. Court of Appeals in Denver, which ruled that this public grading of students’ papers violates the federal law that protects the privacy of students’ records. The justices will reconsider that conclusion in Owasso School District vs. Falvo, 00-1073.

O’Connor Holds Pivotal Vote

In perhaps the term’s biggest cases--on affirmative action, the death penalty and school vouchers--Justice Sandra Day O’Connor figures to hold the deciding vote.

The court’s conservative majority has appeared eager to outlaw race as a decision-making factor in government programs. It is unclear whether the pending case will give them a chance to do so. In Adarand Constructors vs. Mineta, 00-730, a white contractor is challenging affirmative action in federal contracts. But the case could fizzle because the set-aside program at issue has largely been set aside.

The court appears equally eager to rule on whether it is cruel and unusual punishment to execute a mentally retarded murderer. After the justices took up a North Carolina man’s appeal, the state legislature exempted the retarded man from the death penalty.

On religion, as well as on affirmative action, O’Connor regularly votes with her conservative colleagues but refuses to go as far as they would go.

In the past, she has condemned “the use of public funds to finance religious activities” but has applauded aid programs that rely on “true private choice.”

But this term, in a school case from Cleveland, O’Connor will have to decide whether the Constitution allows a “private choice” voucher program if nearly all the public money is spent for tuition at religious schools.