As the United States Supreme Court’s 2003-2004 term gets underway, the seven men and two women who sit on the nation’s highest tribunal have chosen to hear a number of controversial cases that touch on issues of freedom of speech and religion and criminals’ rights. This is not unusual. What adds to the excitement is that major decisions will be handed down just as the 2004 U.S. Presidential campaign picks up steam.
This convergence, say many legal scholars, makes the current term especially important. Sheldon Nahmod, professor of Constitutional law and civil rights at Chicago Kent College of Law, cites several First Amendment cases.
The First Amendment to the U.S. Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
“Many people think that this country’s political campaigns are over-influenced by money, by campaign contributions and the like,” Mr. Nahmod says. “And there have been various legislative attempts to deal with that problem. Some of those attempts have run smack into the First Amendment because the United States Supreme Court held some decades ago that the spending of money for political purposes has some First Amendment protection.”
In 2002 Congress passed the McCain-Feingold campaign finance reform bill and the President signed it into law. It was intended to limit the amount of money spent on political campaigns. However, it was quickly contested in court. Notably, challengers of the law come from all parts of the political spectrum.
“Opponents of the campaign finance law include the Democratic Party and the Republican Party. It includes the National Rifle Association and the American Civil Liberties Union,” says Todd Gaziano, director of the Center for Legal and Judicial Studies at the Heritage Foundation, a Washington-based research and policy organization. He says the campaign finance law limits the ability of people to express their views on candidates or issues in an election campaign.
“One provision that has to do with so-called electioneering communication really makes it difficult for free associations of people whether it be NARAL that supports abortion rights or abortion opponents to express their views within 30 days of any primary or general election,” he says.
The issue is so important that the Supreme Court heard oral arguments on this case in September before its term officially began October 6. A ruling is expected fairly early in the term and may have a big impact on the 2004 election. Or may not, says Mark Graber, professor of government and politics at the University of Maryland.
“The practice has been whenever a campaign restriction on campaign finance is held constitutional, people typically find ways of getting around it,” Mr. Graber says. “So it turns out the Court may have a major influence on how candidates go about raising money but not on how much money they get in the long run.”
The Supreme Court will also hear two other First Amendment cases involving religious freedom. The most prominent is U.S. v. Newdow, in which a father sued the local school district over the Pledge of Allegiance, the nation’s patriotic oath. The Pledge includes the phrase “One nation, under God.” At issue is whether these words violate the religious freedom or establishment clause of the First Amendment to the Constitution.
Most Americans feel that religious freedom doesn’t mean the absence of religion. But some Americans say the First Amendment clearly prohibits the government from establishing religion. Sheldon Nahmod of the Chicago Kent College of Law:
“In the United States these kinds of symbolic issues take on a great deal of significance with the people who are attacking the words ‘under God,’ arguing that the Pledge actually forces students to affirm some sort of belief in some sort of God which violates the Establishment clause. And people on the other side arguing with a great deal of firmness and vehemence that this is just another way for the Courts to try and eliminate the words ‘under God’ and religion from the public schools.”
Many legal scholars expect the Court to dodge the issue. Mark Graber of the University of Maryland says the Court’s reasoning will likely be that the words “under God” in the Pledge are purely ceremonial and thus can remain.
“The main reason why it’s so controversial is a great many people want ‘under God’ because they do think it’s an endorsement of religion,” Mr. Graber says. “And those of us who are opposed want it out because we also think it’s an endorsement of religion. But the Supreme Court I think is likely to side-step a major controversy by saying ‘No, no it’s not really an endorsement of religion it’s just ceremonial.’”
Another case before the Supreme Court also tests the Establishment clause. The case looks at the issue of government-funded scholarships for lower-income students. Todd Gaziano of the Heritage Foundation says that while the Pledge of Allegiance case is getting the most attention, this one is just as important.
“In this case,” he says, “Washington State said that eligible students could choose any major they wanted except for theology if the theology major studied it from a religious perspective. Presumably, if you studied it from an atheist’s nonbeliever perspective, that was fine. But if you were sincere in pursuing a religious studies degree, that was the only thing you could not study.”
The Supreme Court will also hear several cases regarding criminals’ rights. In addition to the case considering whether foreigners held at a U.S. Navy base in Cuba should have access to American courts, the Court is set to hear a challenge to the so-called Miranda rights. Sheldon Nahmod from Chicago Kent College of Law:
“Miranda is of course, a famous, in some circles infamous, Supreme Court decision where the Supreme Court held that persons who are taken into custody must be given Miranda warnings. Told they have the right to remain silent. And the sanction for that is that if those warnings are not given by law enforcement officers those statements taken without Miranda warnings are in fact not admissible in court.”
Sheldon Nahmod says the 1966 U.S. Supreme Court decision based on the Fifth Amendment right against compelled self-incrimination has made a lot of people in the law enforcement community unhappy. Now, there’s an opportunity to limit its scope dramatically.
Looking at the young American nation, Alexis de Tocqueville, the 19th century French writer, predicted that every important social issue facing the United States eventually would make its way to the U.S. Supreme Court. And that is what has happened. The Supreme Court has ruled on racial segregation, school prayer, abortion, the death penalty, and the right to privacy. Though many Americans are critical of the role the U.S. Supreme Court plays in deciding these key issues, others say the Court is playing the role America’s founding fathers had in mind when they laid the groundwork for the United States.