Supreme Court to Deliver Key Decisions

The Supreme Court heads into the final month of its term Tuesday, poised to render its first verdict on President Bush’s handling of the war on terrorism.

The court will hand down more than two dozen decisions in June, including whether the words “under God” should remain in the Pledge of Allegiance, whether the Internet should remain free of criminal restrictions and whether pedestrians must identify themselves when a police officer asks them to.

But most legal scholars were focused on the series of cases that test the president’s powers to hold terrorism suspects. In three cases, the justices will decide whether the military can hold “enemy combatants” -- both foreign and domestic -- without filing charges or giving them a hearing.

Bush’s supporters, as well as his critics, say the court’s rulings will be seen as a report card on the president’s performance.

“This is a term that will be remembered for what the court says about executive power,” said Bradford Berenson, a Washington lawyer who worked in the Bush White House. “And it will be played as either the president overreached and abused his power, or that the president was vindicated.”

He and others expect a mixed set of rulings, however, not a clear-cut win or loss for the White House.

In one case, the justices will decide whether nearly 600 foreigners held in the military prison at Guantanamo Bay, Cuba, are outside the reach of the U.S. courts. In two other cases, the court will decide whether the president and his military commanders have the power to arrest and hold indefinitely Americans whom he deems to be “enemy combatants.”

“I think the president will prevail in each of these cases, but there will probably be multiple opinions outlining the limits of his authority,” said Pepperdine University law professor Douglas W. Kmiec, who served in the Reagan administration.

White House Press Secretary “Scott McClellan will be able to say this vindicated the president’s action, but I suspect the rulings will be hedged. In the sense it’s a report card, I suspect it will not be a letter grade, but instead a message that reads: ‘Your work thus far raises serious questions and we will be watching closely to see if there are signs of progress.’ ”

Civil libertarians expect the court to reject Bush’s view that the power over terrorism suspects is his alone.

“This is about raw power. The administration is taking a very stark position that they have this power, and it’s theirs alone. I don’t think the court will accept that,” said Deborah Pearlstein, a lawyer for Human Rights First.

“There’s an enormous amount at stake. They have asserted an authority that is unprecedented in American history,” said USC law professor Erwin Chemerinsky. “And if they win, there will be no meaningful limit on the president’s control over people he deems to be enemy combatants.”

Besides the detainees’ cases, the court will decide at least four other cases that test the power of the executive branch. They involve U.S. agents ordering the arrest of foreigners abroad, the secrecy surrounding Vice President Dick Cheney’s energy policy task force, whether the president can clear the way for Mexican trucks to deliver goods in the United States, and whether environmentalists can sue to block the administration from allowing off-road vehicles to operate in national wilderness areas.

During the oral arguments, the justices sounded as though they were inclined to side with the administration in all four cases.

The most closely watched case, overall, tests the wording of the Pledge of Allegiance. Fifty years ago, Congress amended the pledge to change the words “one nation, indivisible” to “one nation under God, indivisible.” Those words have been repeated by schoolchildren since then and had largely gone unchallenged.

But Dr. Michael Newdow, an atheist, objected to having his daughter’s teachers recite the pledge with its reference to God, and he won a ruling from the U.S. 9th Circuit Court of Appeals holding that the words amounted to the government promoting religion. Administration lawyers say the pledge promotes “patriotism and national unity” and that the reference to God simply acknowledges the nation’s religious heritage.

During the oral argument in March, the justices sounded as though they were convinced that Newdow was wrong, but they were not exactly sure why.

The pending case on Internet pornography may yield a surprise. So far, the courts have struck down laws that made it a crime to post sexually explicit material on the Web, but the Child Online Protection Act may break the trend. The pending federal statute applies to “commercial” websites that post sexually explicit material but fail to take steps to screen minors. The justices raised few objections during the oral argument.

Since December, the justices have struggled to decide two cases that will determine the practical significance of the Miranda warning, which requires police to tell defendants of their right to remain silent, among other things. In a Missouri case, the court will decide whether police can question a suspect first and warn him afterward of the right to remain silent. In a second case from Colorado, the justices will decide if prosecutors may use physical evidence, such as a gun or drugs, that police learned about by questioning a suspect without warning him of his rights.

The case of a Nevada ranch hand tests the right to privacy at a time when anti-terrorism officials say they need more information about travelers. Larry Hiibel was standing on the side of the road when a police officer stopped and asked him to identify himself. Hiibel refused, and the officer arrested him for failing to identify himself.

The Supreme Court took up Hiibel’s case to decide whether pedestrians have a right to remain silent when confronted by an officer on the street. The decision will come by the end of June.

*

(BEGIN TEXT OF INFOBOX)

The Justices’ Docket

The U.S. Supreme Court is expected to rule on more than a dozen major cases in the next month on issues ranging from the Pledge of Allegiance to off-road vehicles:

Pledge of Allegiance. Do public school districts unconstitutionally promote religion when they lead their students in pledging allegiance to “one Nation under God?” Dr. Michael Newdow, an atheist and father of a child in a suburban Sacramento school, says the court should remove the reference to God. (Elk Grove School District vs. Newdow)

Internet pornography. Can Congress make it a crime for “commercial” websites to display sexually explicit material that could be accessed by minors? This law was struck down as a free-speech violation, but the high court may revive it. (Ashcroft vs. ACLU)

Guantanamo detainees. This case tests the president’s power in the war on terrorism, as well as the authority of the courts. Relatives of 16 men held at Guantanamo Bay asked for a hearing in which the detainees could plead their innocence. The Bush administration says the courts have no jurisdiction to even hear the claims of “enemy aliens” held offshore. (Rasul vs. Bush)

Enemy combatants. Can the president order the military to arrest and hold without a hearing an American he deems to be an “unlawful combatant”? The court will decide on the legal rights of two men, one captured in Afghanistan and another arrested at Chicago’s O’Hare airport. (Hamdi vs. Rumsfeld and Rumsfeld vs. Padilla)

Mexican trucks. Citing the North American Free Trade Agreement, President Bush says Mexican trucks should be allowed to cross the border and deliver goods throughout the United States. Environmentalists won a court order blocking Bush’s plan, but the justices may lift the order. (Department of Transportation vs. Public Citizen)

Cheney energy task force. Environmentalists sought to pierce the secrecy that surrounded Vice President Dick Cheney’s energy policy group, and a judge ordered the White House to turn over documents on who met with the task force. Bush’s lawyers want the judge’s order thrown out. (Cheney vs. U.S. District Court)

Foreign arrests. Can U.S. officials who order the arrest of a foreigner abroad be sued for damages? A Mexican doctor who was abducted, tried and acquitted for the murder of an American drug agent has sued the U.S. agents and a Mexican bounty hunter. (U.S. vs. Alvarez Machain)

Suing HMOs. Can victims of substandard medical treatment provided by their health maintenance organization sue the HMO in a state court? The Texas Legislature passed such a “right to sue” law when Bush was Texas governor, but administration lawyers say it violates federal law. (Aetna vs. Davila)

Miranda warning. Can police question a suspect and warn her after she has confessed that she has the right to remain silent? And can police and prosecutors use evidence such as a gun found by questioning a suspect without giving him the Miranda warning? The two cases test the practical significance of Miranda rights. (Missouri vs. Seibert and U.S. vs. Patane)

Right to be a no-name. A Nevada ranch hand standing along the highway refused to give his name to the police. Must Americans identify themselves when confronted by the police, or may they refuse to talk? Larry Hiibel was arrested for refusing to identify himself. (Hiibel vs. Nevada)

Protecting pensions. Can the trustees of a multi-employer pension plan suspend the monthly benefits for an early retiree who takes a new job, or does federal law always bar pension plans from cutting back on promised benefits? Administration lawyers say pensions should have “flexibility” to adjust to conditions. (Central Laborers’ Pension Fund vs. Heinz)

Proving sexual harassment. Can an employee who quit after her supervisor harassed her with sexual jokes and taunts sue her employer, or is she barred from doing so because she did not first file a formal complaint? The case should clarify the rules for handling sexual harassment claims. (Pennsylvania State Police vs. Suders)

Off-road vehicles. Can environmentalists sue the Interior Department for failing to protect a national wilderness area from off-road vehicles? Bush administration lawyers say the management of these lands is entrusted to the executive branch, not the courts. (Norton vs. Southern Utah Wilderness Alliance).

*

Researched by David G. Savage