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Controversy Nothing New to US Supreme Court


The United States Supreme Court is expected to issue key rulings on cases involving abortion rights and race-based school enrollment. Difficult and controversial issues are hardly new to the nine justices of the High Court.

The job of the Court is to apply the legal foundations set out in the Constitution of the United States in deciding the merits of legal cases brought before the court.

Steven Wermiel, a professor of law at the American University in Washington, D.C., says that it's a difficult job because the Constitution, written in 1787, offers very little specific information about the role of the high court, the source of its authority, and guidelines for rulings. "The U.S. Constitution basically says there shall be a Supreme Court," Wermiel says. "It doesn't specifically say that it has the power to declare unconstitutional acts of the legislature or acts of the president."

In the early 19th century, the High Court finally asserted its authority to over-rule decisions of the other two co-equal branches of government: the Congress and the Presidency. The high court, Professor Wermiel says, gave itself the power of so-called judicial review. "The court has asserted that role for more than 200 years now, and it's pretty well established that the Supreme Court can strike down acts of Congress or block acts of the President," he says.

Wermiel says the high court assumed an expansive role in the use of judicial review starting in the turbulent 1950's when, under the tenure of Chief Justice Earl Warren, who was chief justice from 1953 to 1969, the court ordered desegregation, "first, of the public schools throughout the United States, which, in many part of the country, had been racially separated by law, not unlike apartheid," Wermiel says. "Then the court subsequently ordered the desegregation of other public facilities: public golf courses, public theaters, bus depots and other public facilities."

Wermiel notes the desegregation rulings of the 1950's, while a major hallmark of the modern court, were at the time considered quite controversial, as was a later ruling, in the early 1960's, banning prayer in public schools. "The court said this kind of mandatory, publicly-imposed prayer violated the principle of 'separation of church and state': the idea that religion and government should be kept apart (which the court said was found) in the First Amendment to the U.S. Constitution. That was a very important but also widely criticized decision."

Wermiel says that the high court ruled the Constitution mandated a separation of church and state. While that specific wording is not found in the document, the court interpreted it that way, believing the Framers of the Constitution wanted a clear separation of religious and government institutions.

Critics objected to what they said was an overly broad interpretation of the Constitution, and raised the same objection when the Supreme Court issued a landmark ruling in 1973, legalizing abortion in the United States. In that case, the high court ruled that women have a constitutional right to privacy in deciding whether to terminate their own pregnancies. Wermiel points out that there's no mention in the Constitution about a citizen's right to privacy. "There are those who believe the Court shouldn't have the power to interpret the Constitution that way,' Wermiel says. "Those who argue that the Constitution ought to be limited to its original language or meaning don't think the Court ought to be able to read the existence of an implicit right into the Constitution."

But Wermiel says the high court sided with people who believe the Court must be able to read the Constitution in a way that is adapted to the issues of each era and each time, "otherwise the Constitution would be a meaningless and obsolete document."

Professor Wermiel says that in recent decades -- and with the current court, as well -- one or two justices frequently play the role of the so-called swing vote: a justice who breaks a high-court stalemate over the issue of how to interpret the Constitution, strictly or broadly.

"There clearly is," he says, "in the last 30 years, a dominant influence in the Supreme Court of what has come to be known as the 'swing vote': a justice in the middle, who sometimes sees a narrow role for the court and sometimes a broader role. The first justice to play that role was Justice Lewis Powell, who served from 1972 to 1987. He was frequently the vote that decided the outcome of many important cases -- many of the abortion cases in the era after the high court ruling legalizing abortion, the ruling known as Roe vs. Wade. Justice Powell was often the pivotal vote in those cases."

Wermiel says the swing-vote tradition continued with Justice Sandra Day O'Connor. She served from 1981 until last term. "Now that she has retired," Wermiel says, "all eyes are on Justice Anthony Kennedy: that he may be seen as the right smack-in-the-middle defining vote of the court in many issues where the court is split four to four, that it will be his vote that may determine the outcome."

The Supreme Court is scheduled to hear 31 cases this term. Notable among them: whether partial-birth abortion, a rare but controversial procedure which has been banned by Congress, should be made legal. The court will also decide on the legitimacy of so-called affirmative-action policies: whether public, government-funded elementary and high schools should be required to maintain a racially-diverse student population.

Again, says Professor Wermiel, the debate comes down to whether the High Court should broadly interpret the Constitution or stick to the strict language of the document. "It really is not a debate that can be resolved. There are justices on the court who hold both of those views: some, one view, some the other," he says, adding, "I don't think we'll ever really settle that."

Many legal experts say that, with two years remaining in office, President Bush, who has already appointed two justices known for their strict constructionist philosophy, may have the opportunity to appoint a third. That could tip the philosophical balance on the high court and possibly set the Supreme Court on an historic new course.