The 1996-97 Supreme court term

On the first Monday in October, opening day for the Supreme Court, the justices will begin to consider a docket full of cases with far-reaching constitutional implications. Douglas Kmiec, professor of constitutional law at the University of Notre Dame, gave WORLD his picks for the cases to watch in the upcoming term:

**red_square** Mack vs. United States and Printz vs. United States: This is a 10th Amendment (states' rights) case arising from the enforcement of the controversial Brady Act, which seeks to limit access to handguns. It's not handgun limitations per se that are at issue, but rather the fact that local sheriffs are ordered to conduct the backgrounds checks and maintain a mountain of records. "States have taken the position that this is federal government meddling" in local affairs--in other words, an unfunded mandate.

Precedent: In a similar case in 1992 (New York vs. United States), Justice O'Connor wrote that the federal government couldn't "commandeer" state legislatures. "This case says, just as you can't order our state legislatures, so you can't boss our sheriffs," Mr. Kmiec explains.

**red_square** Schenk vs. United States is a major abortion case that will test the limits of judges' ability to insulate abortion clinics from pro-life protests. Schenk is notable because a lower court granted extremely broad protections to a local clinic, creating a no-protest zone without clear lines of demarcation and defining a protest as "sort of anyone holding up their hand outside a clinic and saying, 'No, don't.'"

Precedent: Several years ago in Madsen, the court upheld injunctions against protests at clinics, but at the same time urged judges not to issue injunctions that were overly broad. Mr. Kmiec blames this "hazy and cautious" language for allowing judges to push the limits of acceptable injunctions and expects the court to more clearly define the free speech rights of pro-lifers outside abortion clinics.

**red_square** Clinton vs. Jones. Lower courts have already held that "the president can be held responsible for his civil indiscretions committed outside the official scope of his office," according to Mr. Kmiec. Now, in the most politically charged case this year, the Supreme Court justices must decide if such litigation can proceed while a president is still in office. The Constitutional issue at stake is one of separation of powers: Does such judicial investigation of the executive branch violate the principle of separation of powers? "As a matter of constitutional doctrine, that will be an important case regardless of the outcome of the election in November."

**red_square** Arizona vs. Arizonans for Official English. In another important case, the court will review the constitutionality of an Arizona law mandating that state government employees use only English in carrying out their responsibilities. One state worker, in violation of the law, continued to advise Hispanic clients in Spanish and was disciplined by her superiors. The justices must decide whether the employee's right to free speech was violated.

**red_square** Maryland vs. Wilson. "It's been a while since the court has addressed search-and-seizure issues," notes Mr. Kmiec, but several cases on the docket will bring the issue to the fore once again. In Wilson, for instance, police officers thought the passenger in a car that had been stopped looked nervous, and they ordered him out of the car. When he obeyed, crack cocaine fell to the pavement, and both driver and passenger were arrested. Lower courts, however, suppressed the drug evidence on procedural grounds, saying the police had overstepped their authority by ordering the passenger out of the car. "In these law-and-order times, with both presidential candidates talking tough on crime, that case has the potential for being of some interest."

**red_square** Voting-rights cases. "This has been a staple almost every term. The question is, To what degree can race be used in the fashioning of congressional districts? The court has already ruled that race should enter into the equation only to remedy past discrimination, "but now the justices have to agree on what constitutes past discrimination."

Precedent: "The Clinton Justice Department has been leaning on states to maximize the number of majority minority districts, but the court has in the past [e.g., U.S. vs. Johnson] been curtailing such aggressive Justice Department activity."

**red_square** Religious freedom: In addition to those cases already on the docket, Mr. Kmiec expects the high court to agree to hear several other notable cases. At least one challenge to the Religious Freedom Restoration Act is almost certain to get a hearing, he believes. "The Religious Freedom Restoration Act has a checkered history in the lower courts. A number [of courts] have held that the act is unconstitutional. In essence, they've said Congress violated the separation of powers by enforcing a more rigorous standard [of what constitutes religious freedom] than the court has adopted."