Elections, religion, and federalism top court's docket in new term.

The new Supreme Court term began not on the traditional first Monday in October, but on September 9, when the Court reconvened to hear challenges to the campaign finance reform law enacted last year. To the surprise of many, the Court returned with the same nine justices; the predicted retirements did not happen.

On the last day of last term, after the Court announced several dramatic rulings, Chief Justice William Rehnquist said he had an announcement about resignations at the Court. To a hushed, packed courtroom, he announced that the Court's librarian was retiring. For the 10th straight year, the same nine justices will sit on the Court, the second longest stretch in American history without a vacancy.

What can be expected in the new term?

The O'Connor Court

Again, the outcome of the most important cases this term is likely to turn on the vow of Justice Sandra Day O'Connor. Last year, she was in the majority in virtually every important case--such as those upholding affirmative action, allowing life sentences for shoplifting under California's three-strikes law, rejecting constitutional challenges to Interest on Lawyer Trust Account programs, prohibiting states from retroactively extending the statute of limitations for sex crimes, and permitting indefinite detention without due process of noncitizens facing deportation. O'Connor was the only justice in the majority in all these cases.

In the term that began in October 2002, the Court decided 84 cases, 15 by a 5-4 margin. In 6 of those 15 decisions, the majority comprised Rehnquist, O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas. In four of the 5-4 cases, the majority was made up of John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer, and O'Connor. No other combination of justices was present more than once in the 5-4 rulings. O'Connor was in the majority in 13 of them. There is every reason to believe that this year, it will once again be the O'Connor Court.

Elections

This term will probably be remembered for the Court's focus on the electoral process. Without question, one of the year's most significant decisions will be on the constitutionality of the Bipartisan Campaign Reform Act of 2002. After years of debate, Congress enacted Ibis major change in campaign finance law, banning "soft money"--funds raised by political parties and then given to individual candidates. The law prohibits contributions by individuals under age 18 and increases contribution limits if a candidate's opponent spends large amounts of personal funds in a campaign. The act also prohibits corporations and unions from running broadcast advertisements--30 days before primary elections and 60 days before general elections--that promote, support, attack, or oppose candidates lot federal office.

Many lawsuits challenged these provisions, including those brought by Sen. Mitch McConnell (R-Ky.), the National Rifle Association, the American Civil Liberties Union, the Republican National Committee, and the California Democratic Party. A three-judge federal district court issued a 1,700-page opinion, upholding some provisions and striking down others. (1) The Court's decision is likely to define the nature of election campaigns in the United States for years to come.

Another case likely to be of enormous practical and political significance is Vieth v. Jubelirer, in which the Court will determine whether and when partisan gerrymandering violates equal protection. (2) Legislatures drawing election districts always do so to benefit the controlling political party; a Democratic legislature draws districts to maximize safe seats for

Democrats, and a Republican legislature does the same for its own benefit.

A three-judge federal court, relying on a Supreme Court decision from almost two decades ago, Davis v. Bandemer, (3) ruled in Vieth that partisan gerry-mandering in redrawing congressional districts does not violate equal protection when there is no evidence that the people complaining of the redistricting have been shut out of the political process. All affirmance by the Surpreme Court would continue, and perhaps even intensify, such partisanship in drawing election districts. A reversal would mean a major upheaval in the political process and perhaps require nonpartisan districting commissions across the country.

Criminal procedure

The Supreme Court already has granted certiorari in almost a dozen cases concerning criminal procedure issues. More than any year in recent memory, this term is likely to clarify many unresolved issues under the Fourth and Fifth Amendments.

The Fourth Amendment cases include Arizona v. Gant, in which the Court

will decide whether police officers may search a car when a person is arrested after exiting the vehicle. (4) Maryland v. Pringle involves whether the police may arrest all the occupants of a car when they find contraband within it. (5) In United States v. Banks, the Court granted review to determine how long police must wait before searching a residence alter knocking and announcing their presence." (6)

Several cases involve the Fifth Amendment privilege against self-incrimination. For example, in United States v. Patane, the Court will decide whether lack of a Miranda warning requires that physical evidence derived from a suspect's voluntary statement be suppressed. (7) In Missouri v. Seibert, the issue is whether intentionally questioning a suspect without proper administration of a Miranda warning precludes admission of statements obtained from the suspect later, after the warning was given. (8)

Aid to religion

In Locke v. Davey, the Court will consider whether the government must fund religious education if it pays for secular schooling." Washington state provides grants for in-state education to certain college students, who may use the money at public or private secular schools but not by students pursuing a degree in theology. Washington base., this distinction on a state constitutional provision that prohibits any direct or indirect aid to religion. The Ninth Circuit held that it was unconstitutional for the state to discriminate against religious education in this way.

The Court's ruling is likely to have profound consequences beyond the narrow context of college scholarships. In recent years, the Court has relaxed restrictions on the government's ability to aid religion, such as by allowing vouchers to be used in parochial schools. (10) Locke asks whether the government is constitutionally compelled to provide aid to religious institutions if secular ones receive funds.

Federalism

In the last decade, the Supreme Court has aggressively protected states' rights by dramatically expanding the scope of state sovereign immunity. For example, the Court has significantly restricted Congress's power to authorize suits against state governments, holding that such suits are allowed only under laws enacted pursuant to 5 [section] of the Fourt-teenth Ammendment.

Moreover, the Court has narrowly interpreted Congress's power under 5 [section]. It held in Board of Trustees v. Garrett that state governments cannot be sued for violating Title I of the Americans with Disabilities Act (ADA), which bars employment discrimination against people with disabilities. (11) A year earlier, in Kimel v. Florida Board of Regents, the Supreme Court ruled that state governments cannot be sued for violating the Age Discrimination in Employment Act. (12) Last term, however, the Court departed from this trend and ruled in Nevada Department of Human Resources v. Hibbs that state governments may be sued for violating the Family and Medical Leave Act. (13)

This term, in Tennessee v. Lane, the Court will decide whether state governments can be sued for violating Title II of the ADA, which prohibits discrimination against people with disabilities in government programs, services, and activities. (14) The case involves two disabled people who were denied access to a courthouse--one of them had to crawl up two flights of stairs to get to the court-room.

These, of course, are just some of the issues facing the Court; only half the term's docket is set. The Court will probably also consider controversial issues such as whether the words "under God" in the Pledge of Allegiance may constitutionally be uttered in public schools and whether the Second Amendment limits government regulation of firearms. The new term, like its recent predecessors, is likely to be filled with blockbuster decisions affecting people in their most important and intimate activities.

Notes

(1.) McConnell v. Fed. Election Comm'n, 251 F. Supp. 2d 176 (D.D.C. 2003), prob. juris, noted, 123 S. Ct. 2268 (2003) (No, 02-1676).

(2.) 241 F. Supp. 2d 478 (M.D. Pa. 2003) (per curtain), prob. juris, noted, 123 S. Ct. 2652 (2003) (No. 02-1580).

(3.) 478 U.S. 109 (1986).

(4.) 43 P.3d 188 (Ariz. Ct. App. 2003), left. granted, 123 S. Ct. 178d (2003) (No. 02-1019).

(5.) 805A.2d 1016 (Md. 2002), cert. granted, 123 S. Ct. 1571 (2003) (No. 02-809).

(6.) 282 F.3d 699 (9th Cir. 2002), cert. granted, 123 S. Ct. 1252 (2003) (No. 02-473).

(7.) 304 F.3d 1013 (10th Cir. 2002), cert. granted, 123 S. Ct. 1788 (2003) (No. 02-1183).

(8.) 93 S.W.3d 700 (Mo. 2002) (eu banc), cert. granted, 123 S. Ct. 2091 (2003) (No. 02-1371).

(9.) 299 F.3d 748 (9th Cir. 2002), cert. granted, 123 S. Ct. 2075 (2003) (No. 02-1315).

(10.) Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

(11.) 531 U.S. 356 (2001).

(12.) 528 U.S. 62 (2000).

(13.) 1238. Ct. 1972 (2003).

(14.) 315 F.3d 680 (6th Cir. 2003), cert. granted, 123 S. Ct. 2622 (2003) (No. 02-1667).

ERWIN CHEMERINSKY iS the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California. The author thanks Annika Martin and Dierdre Wells for their research assistance.