All rise!

National | LAW: The Supreme Court convenes a new term next week-with religious-liberty, federalism, and law-and-order cases on the docket

Issue: "California's new governor," Oct. 4, 2003

Sept. 8 was just a warm-up. The much-anticipated oral arguments over campaign-finance reform may have brought the Supreme Court justices back to Washington for a day, but the real work won't start until Oct. 7, when the new term officially begins.

Already the docket is half full, and analysts expect another year of 5-4 decisions from one of the most closely divided courts in history. Doug Kmiec, professor of constitutional law at Pepperdine University School of Law, says three early cases, in particular, could have far-reaching implications.

"My headline case would be Locke vs. Davey," Mr. Kmiec says. "It's the next generation of school-choice cases." The case comes from Washington State, where so-called Promise Scholarships help students pay their tuition at both public and private colleges. But when Joshua Davey tried to use his scholarship to pursue a major in theology, the state demurred, claiming that public funding for religious study would violate the separation of church and state.

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Mr. Davey sued, and the liberal 9th U.S. Circuit Court of Appeals, surprisingly enough, agreed with him. Now the Supreme Court will decide whether the notorious 9th got this one right. The issue, according to Mr. Kmiec, is this: "If a state government creates a generally available scholarship but deliberately discriminates against believers, does that amount to a violation of the free-exercise clause of the First Amendment?"

If the court rules in favor of Mr. Davey, it could signal a historic shift in the relationship between church and state. Laws like Washington's were influenced by the anti-Catholic, anti-immigrant political platform of James G. Blaine, the Republican nominee for president in 1884. Some 37 states adopted so-called Blaine Amendments prohibiting public funding of parochial schools, and those laws eventually were applied to any sort of religious education.

"This is the first case to address head-on the 19th-century Blaine Amendments," Mr. Kmiec says. "One of the questions lingering in the background is whether that history of religious animus somehow influences the court's thinking on the free exercise of religion."

Mr. Kmiec also is watching Tennessee vs. Lane, one of several cases in recent years to test the states' liability in light of sweeping new federal laws. The Lane case deals with a disabled litigant who sued the state for failing to make courthouses wheelchair accessible, as required by the Americans with Disabilities Act. "The Rehnquist court has been particularly sensitive to the prerogatives of states," Mr. Kmiec notes, and the chief justice generally tries to ensure immunity from lawsuits arising out of legislation like the ADA. But last year, in a similar case, Mr. Rehnquist himself wrote an opinion that "sort of pulled back a little bit in its protection of the states. People will be watching to see if that trend continues."

Finally, Mr. Kmiec says to keep an eye on U.S. vs. Patane, a law-and-order case that could make it harder to put criminals behind bars. Patane arises from a case in which Colorado police attempted to read Samuel Patane his Miranda rights before arresting him. Mr. Patane cut them off, saying he already knew his rights, and told them where a gun was hidden in his bedroom.

Mr. Patane was charged with illegal possession of a firearm, but lower courts excluded the gun as evidence because police had failed to read the defendant his rights in their entirety. "One would hope that logic and common sense will compel the court to find such evidence admissible," Mr. Kmiec says. Then he adds: "But of course, anything's possible."

Big business by any other name: The lawsuit industry

Their cases don't often make it to the Supreme Court, but America's trial lawyers-the ones who advertise on phone books and bus stops in search of new lawsuits-may be the most influential legal group in America. Taken as a whole, they're also a very big business, as a new report from the Center for Legal Policy at the Manhattan Institute makes clear.

"Trial Lawyers Inc.," a study unveiled in Washington on Sept. 23, compares the revenues from the lawsuit business (which the think tank refers to in shorthand as Trial Lawyers, Inc.) with traditional businesses like manufacturing and pharmaceuticals. The report shows how the lawsuit business prospers even while the economy suffers.

According to the Center for Legal Policy, the lawsuit business recruits "customers" through aggressive advertising that promises a big payoff. Thanks to sympathetic juries and unlimited liability, they often deliver on that promise.

Still, the customers may not necessarily get all they were expecting. Of the $200 billion generated by lawsuits each year, almost 20 percent goes to the lawyers who brought the suits.


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