June 27, 2005 – Page 1704
The Supreme Court will begin to undergo a generational change this fall — and not necessarily in the way that many people expect.
The change will occur even if Chief Justice William H. Rehnquist, the court’s conservative fulcrum, who is battling thyroid cancer, decides not to retire when the current term ends this week. It will happen even if the still-healthy John Paul Stevens, the oldest and arguably most liberal justice, stays on the bench into his late 80s. And it will happen even if centrist Justice Sandra Day O’Connor opts to continue casting swing votes for a few more years into her late 70s.
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That is because no matter who retires and when, the central issues the court will face when it reconvenes in October, and during the next several years thereafter, will be fundamentally different from those that have dominated its docket during the record 11 years that this group of nine justices has been together, and in fact for most of the 33 years that Rehnquist has been on the court.
That makes it much more difficult to assess the imprint that President Bush will make if he has the opportunity to try to put a new person on the court this summer. His nominee’s “paper trail” — the speeches, writings and legal opinions that are the principal tools for evaluating any potential justice’s legal philosophy — will not be mined simply to try to answer the questions about the nominee’s jurisprudence that have been central to confirmation battles since the 1980s. Questions about abortion rights and race are not going away, of course.
But this time, the Senate and advocacy groups across the ideological spectrum are will be sure to be looking beyond those issues in hopes of
ascertaining the nominee’s views about a series of relatively new — and, as a result, not entirely settled — legal questions that have been percolating through the lower courts. It is on these new questions that the incoming justice stands to have the most significant impact.
When this next generation of disputes about the meaning of the law and the Constitution finally arrive on the Supreme Court’s doorstep — whether or not that happens at the same time a new face or two arrives on the bench — the decisions are likely to reorder the court’s relatively reliable voting blocs for the past decade and give justices an opportunity to set precedent in areas ranging from gay rights and religious expression to states’ rights and the scope of the war on terrorism
Since Rehnquist, who is 80, was diagnosed with cancer last fall, about a dozen conservatives, most of them federal judges, have been regularly mentioned as possible Bush nominees to become the 17th chief justice of the United States. (Speculation that another justice will retire this summer has almost entirely dissipated in recent weeks.)
Although the White House has not done much to either accelerate or tamp down speculation about any of them, the candidates said to be receiving the closest consideration include John G. Roberts Jr., a judge on the U.S. Court of Appeals for the District of Columbia Circuit; J. Michael Luttig, a judge on the Fourth Circuit in Richmond, Va.; Samuel A. Alito Jr., who sits on the Third Circuit in Philadelphia; and Attorney General
The court’s agenda for most of Rehnquist’s tenure — including the 15 years before his elevation to chief justice in September 1986 — was dominated by two issues: abortion and race. To a large degree, the Supreme Court has settled the pressing questions in those areas. Roe v. Wade, the landmark ruling affirming the right to abortion, has been upheld, though with limits. The same goes for affirmative action. Redistricting congressional districts along racial lines has been found to be legally suspect, although not completely prohibited.
Capital punishment, another burning issue of the 1970s and 1980s, began to recede from the list of hot-button topics for the court once the last of the justices who had been firmly opposed to the death penalty, Harry A. Blackmun, retired 11 summers ago. Recent court rulings to prohibit the execution of juveniles and the mentally retarded settled two lingering questions in this area and provoked little public criticism.
But in place of those contentious subjects, the court will soon have an opportunity to shape the national attitude toward a new array of intensely debated questions. For example, the justices will soon be called on to decide what are the constitutional rights of suspected enemy combatants who have been rounded up in the war on terrorism — and whether the federal government has been violating those rights. Three rulings the court handed down last June left many questions unanswered, including whether the government may indefinitely, and without bringing charges, detain an American who has been found fighting for an enemy force within the United States.
The justices will eventually be called on to decide whether the government may deny marriage rights to gay men and lesbians. The first test may center around a 1996 federal law that, among other things, declared that states are not obligated to recognize any same-sex marriages that might be legally sanctioned in other states. The court declined to establish any broad new precedents in two rulings deemed favorable to gay rights, in 1995 and 2003.
The court also will inevitably have to decide the extent to which foreign and international law should be factored in deciding cases in U.S. courts. The justices have spurred considerable criticism from conservatives for citing international laws in their decisions in the most recent death penalty and gay rights cases. Critics question whether reliance on foreign judicial doctrine undermines U.S. sovereignty.
Justices also will be looking at new cases in two areas where Rehnquist has made perhaps his biggest mark: states’ rights and religious expression.
The chief justice has led the conservative majority in revitalizing the principles of states’ rights while limiting the scope of federal laws. But the court recently reversed course when it allowed federal drug law to override some state laws permitting the use of marijuana for medical purposes.
Rehnquist also helped forge majorities to ease constitutional limits on government involvement in religious matters. One soon-to-be-resolv
Three years after his arrest at Chicago’s O’Hare airport, Jose Padilla, a U.S. citizen accused of plotting to detonate a radioactive “dirty bomb,” is still trying to get a court hearing to contest the government’s decision to hold him as an “enemy combatant” in the war on terror.
Meanwhile, hundreds of foreign detainees held since the war in Afghanistan in a U.S. prison camp at Guantánamo Bay, Cuba, are also trying to get federal court hearings to challenge their confinement.
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The Bush administration has fought to keep the cases out of federal court, claiming broad power for the president as commander in chief to lock up enemy combatants. Civil liberties and human rights groups say the aggressive legal strategy violates the U.S. Constitution as well as international law.
The Supreme Court stepped into the conflict last year with three rulings that gave federal courts some role in the cases. But it left many issues unsettled. “The court couldn’t answer all the relevant questions in the first set of cases,” said Sean Murphy, an international law expert at George Washington University (GWU).
For Padilla, the central question is whether he has to be charged and tried in a regular criminal case with the same legal rights given to any defendant. A federal judge in South Carolina ordered the government on Feb. 28 to charge Padilla or release him. The Justice Department is appealing.
For the Guantánamo Bay detainees, the issue is whether hearings before specially established military tribunals satisfy whatever due process rights they may have — or, indeed, if they have due process rights at all. Two federal court judges in Washington have issued conflicting rulings that will have to be resolved by higher courts.
The administration is continuing to aggressively defend its position, though some supporters concede that its indefinite detentions and decisions to deny suspects access to legal representation have gone too far.
“The government always was on shaky ground in trying to deny access to counsel for the long term” in the Guantánamo Bay cases, said Richard Samp, chief counsel for the conservative Washington Legal Foundation, which filed briefs supporting the administration in last year’s case.
Though most of the rulings thus far have gone against the administration, observers say courts generally are willing to give the executive branch leeway in prosecuting suspected terrorists, so long as the administration develops clear-cut rules. But to date, “it’s not clear that the executive branch has developed a process,” said GWU’s Murphy.
In Padilla’s case, U.S. District Judge Henry F. Floyd in South Carolina — a Bush appointee — ruled that the government could not continue to hold Padilla as an enemy combatant, but had to bring a criminal case or release him. The government is appealing.
The three federal judges in Washington have ruled on petitions filed by the Guantánamo Bay detainees to determine the legality of their custody. Only one has sided with the administration. U.S. District Judge Richard J. Leon ruled Jan. 19 that federal courts have no power to order the release of foreigners captured during wartime and held outside the United States.
Twelve days later, U.S. District Judge Joyce Hens Green ruled that the detainees had the right to hearings in federal courts instead of before the review tribunals that the Pentagon established to hear the cases. Earlier, U.S. District Judge James Robertson ruled Nov. 8 that the procedures also violated international law by denying detainees a hearing on eligibility for prisoner-of-war status and a more formal procedure. That ruling came in a case brought against Salim Ahmed Hamdan, a former driver for Osama bin Laden in Afghanistan.
The Supreme Court’s decisions last June were generally viewed as a sharp rebuff for the administration. In Rasul v. Bush, the court ruled 6-3 that the Guantánamo Bay detainees could bring federal habeas corpus petitions — used to challenge the legality of confinement — in order to seek release. O’Connor and fellow swing-vote conservative Anthony M. Kennedy joined the liberal bloc of Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
The court dismissed Padilla’s appeal on a procedural point, telling him he had filed the case in the wrong court. But it ruled in a relat
Justices in the Hamdi case made a preliminary decision in favor of the government’s position that the president has the power under the congressional resolution authorizing use of force in Afghanistan to hold suspected enemy combatants outside the criminal justice system. Samp and other administration officials say the ruling in Padilla’s case by Judge Floyd contradicts that part of the high court decision.
But Floyd said the two cases are different because unlike Hamdi, Padilla was arrested on U.S. soil, unarmed and in civilian garb. Hamdi, who held dual U.S. and Saudi citizenship, was later released under a deal that sent him back to Saudi Arabia.
As for the Guantánamo cases, Samp said the government’s decision to set up the military tribunals “cuts the legs out from under” the detainees’ position. “All along, they were saying that they’d never gotten any kind of process,” Samp said. “Now they’ve gotten some process.”
In her ruling, however, Green had denied the detainees “the most basic fundamental rights” in the hearings, including the right to counsel and the right to confront the evidence against them. Murphy says Green’s ruling shows that the administration’s “trust us” position is not working.
Though Supreme Court justices will have to deal with these and other legal questions, they appear to be in no hurry. Earlier this year, they passed up chances to expedite both Padilla’s and Hamdan’s cases. Now, federal appeals courts will hear the cases, meaning the justices will probably not rule on the legal status of the detainees for another year.
When four gay men last year asked the Supreme Court to nullify a Florida law that barred gays and lesbians from adopting children, they gave the justices an opportunity to clarify the legally murky subject of gay rights.
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The plaintiffs were emboldened by the justices’ ruling in a 2003 case that overturned a Texas sodomy law on the grounds that anti-gay sentiment could not be used to create public policy. The men were already raising children as foster parents, under a state agency’s supervision. And the 11th Circuit federal appeals court in Atlanta had upheld the Florida law, in a 6-6 decision.
However, the justices decided to pass. In early January, the high court declined without comment to hear the men’s case. In doing so, justices continued a trend in which they have skirted opportunities to define gay rights or address the separate question of whether sexual orientation should be a basis for giving individuals special legal protections.
But these questions can be expected to circle back to the Supreme Court in the coming years. Gay rights activists are pressing challenges to the military’s “don’t ask, don’t tell” policy on gays. And the court will probably be drawn into the incendiary debate over same-sex marriage, likely through challenges to the 1996 law.
The current landscape has given gays “a patchwork” of legal protections, in the view of Evan Wolfson, founder and executive director of Freedom to Marry, an advocacy group that backs same-sex unions. “It can take decades before the Supreme Court or Congress will step in to resolve the issue. That’s where we are now.”
The result, said Chai Feldblum, a Georgetown University law professor, is that gays are left with “a subjective, unsatisfying standard,” in which they receive legal protection if a government policy “reeks of unfairness.” Yet justices are capable of upholding laws that single out gays if the statutes can “somehow be construed as reasonable.”
The Supreme Court gave gay rights advocates their first major victory in 1996, when, in a 6-3 decision, it struck down a Colorado ballot initiative that prohibited state or local governments from passing a law to prohibit discrimination against gays. Writing for the majority, Justice Anthony M. Kennedy said the measure could not pass even the weakest test of constitutionality because it singled out gays for no reason other than animosity.
The justices went further in the 2003 case of Lawrence v. Texas, establishing that there was a constitutional right to sexual privacy. However, Kennedy, again writing for the majority in another 6-3 decision, pointedly noted that the decision “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”
Rehnquist dissented in both cases, along with Justices Antonin Scalia and Clarence Thomas.
Justices appear content for now to allow the 2003 decision to play out in various legal venues before taking on another major case. Asked shortly after the ruling how the gay marriage issue would reach the high court, Ginsburg responded, “I don’t know. We need time to live with Lawrence.”
For the coming term, the court has taken one case that deals tangentially with gay issues. The government is trying to reinstate the federal law cutting off money to colleges and universities if they limit military recruiters on campus. Some law schools opposed to the “don’t ask, don’t tell” policy have cited their own anti-discrimination policies in denying military recruiters’ use of campus facilities for student interviews.
However, the 2003 decision and developments in state courts are prompting gay rights activists to press broader cases that eventually will reach the high court.
Activists want to declare unconstitutional the 1996 law, known as the “Defense of Marriage Act,” that defines marriage in federal law as a heterosexual union and declares that states do not have to recognize same-sex unions sanctioned in other states. The issue gained currency after the Massachusetts Supreme Judicial Court declared in 2003 that the state’s constitution could not prevent same-sex unions in the state, paving the way for the first legally sanctioned gay marriages.
Gay rights advocates are litigating what they call “marriage equality” cases in states including California, New Jersey and Washington with the hope of replicating the Massachusetts decision. In addition, state courts are seeing more cases testing financial or custody rights of gay couples or parents.
Social conservatives would like to keep the justices, and lower courts, idle on many such questions. They are pressing for state constitutional amendments to ban gay marriage or, in some cases, restrict any legal privileges whatsoever for same-sex couples. Conservative groups also continue to lobby in a long-shot bid to enact a federal constitutional amendment on gay marriage that would be immune from any legal challenges.
“Legally, the strategy is to amend the federal and state constitutions to take away the ability of judges who favor a redefinition of marriage,” said Glen Lavy, senior counsel at the Arizona-based Alliance Defense Fund. “The Supreme Court has never gone against the majority of states when recognizing fundamental rights. And the states are going our way.”
Congress has steadily increased the federal government’s influence over law enforcement, business and other matters over the past century, arguing that the increased power was necessary in order to regulate interstate commerce. Rehnquist in the 1990s led a narrow majority of justices in pushing back, asserting that, in some cases, Congress was overreaching and unconstitutionally intruding on states’ rights.
A recent ruling is raising new questions about the limits of federal power and fueling speculation about how the high court will draw jurisdictional lines in the future.
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Rehnquist succeeded in striking down as unconstitutional a 1990 law that made it a federal crime to possess a gun anywhere near a school and a 1994 statute that granted victims of gender crimes the right to sue their assailants in federal court. The chief justice separately helped protect state governments from private suits that alleged violations of some federal laws and blocked Congress from forcing states to help enforce or administer federal regulations, such as background checks required by gun control laws.
However, the limitations on federal power may have reached their high-water mark. On June 6, the court ruled, in a 6-3 decision, that federal drug law supersedes state laws that permit the medical use of marijuana. Allowing states to legalize marijuana for such purposes, Stevens wrote for the majority, would leave “a gaping hole” in the Controlled Substance Act. Rehnquist, O’Connor and Thomas dissented.
Conservatives, who generally support states’ rights, believe the ruling shows that the court may be losing enthusiasm for the issue. The decision demonstrates that justices are “not serious about patrolling the line between what is national and what is local,” said Douglas Kmiec, a constitutional law professor at Pepperdine Law School.
But liberal observers who were critical of Rehnquist’s earlier decisions say the ruling does not reveal much about the future. And they predict that Congress will continue to test the boundaries of federal power, possibly by aggressively using its constitutional power to withhold federal funds.
The court’s lineup in most of the states’ rights cases has pitted the Rehnquist-led conservatives against the four liberal justices: Stevens, Ginsburg, Breyer and Souter. But Scalia and Kennedy joined the liberals in the medical marijuana decision. And O’Connor in two cases and even Rehnquist in one have provided key votes to allow suits against state governments for violating federal laws, such as the Americans With Disabilities Act and the Family and Medical Leave Act.
Observers believe the Rehnquist bloc’s desire to protect states’ rights came into conflict with contemporary regulations and civil rights laws. Peter Rubin, a Georgetown University law professor, notes that the medical marijuana case essentially would have forced justices who upheld the state laws to reject a widely held legal doctrine that federal regulation was necessary to police a national economy. Kennedy, for one, had signaled in earlier decisions that he wouldn’t go that far.
Legal arguments that states are immune from civil suits or criminal prosecution, moreover, are increasingly seen as limiting Congress’ ability to use the 14th Amendment to prevent racial or sex discrimination. For that reason, states’ rights advocates who aggressively press their case could face political backlash and accusations that they are trying to undermine civil rights law.
Experts predict that questions about the limits of federal power will take on new forms in future Supreme Court sessions. Conservatives intent on limiting federal powers may try to challenge Congress’ broad discretion to spend “for the public welfare,” and block efforts that tie federal funding to policy initiatives, such as testing requirements in public schools.
Other challenges could come in the area of property rights. Conservatives worry that zoning decisions, environmental laws and historic preservation efforts have the potential to limit the potential value of private land and could constitute illegal “takings.”
But the Rehnquist court’s property rights decisions have been mixed news at best for conservatives. Just last month, the court unanimously refused to make it easier to challenge government regulations as an unconstitutional taking of private property without compensation. And on June 23, the court, in a 5-4 decision, upheld local governments’ power to take property and transfer it to private companies for economic development.
Whatever avenues conservatives do pursue, Rehnquist’s retirement can only be a setback. “A new chief justice is not likely to change the outcomes, except to make the court less interested in [states’ rights],” said John Yoo, a conservative constitutional law scholar at the University of California at Berkeley.
When Houston police arrested José Ernesto Medellín and five other teenagers in June 1993 for the brutal rape and murder of two teenage girls, no one expected the case to become a major test of the force of international law in U.S. courts.
But Medellín, a Mexican national who was convicted and sentenced to death for the crime, is now seeking a new hearing because authorities never told him of his right under an international treaty to consult with Mexican consular officials for legal help after his arrest.
Medellín’s case was argued before the U.S. Supreme Court on March 28, at a time when the justices were sharply divided on the role that foreign and international law should play in their decisions. Only four weeks earlier, the court cited international treaties, such as the United Nations Convention on the Rights of the Child, as justification for prohibiting the execution of juvenile offenders as cruel and unusual punishment.
Two years before that, the court cited a decision by the European Court of Human Rights in its ruling striking down the Texas sodomy law. And in 2002 the court barred execution of mentally challenged inmates after noting the “overwhelming disapproval” of the practice by other countries.
Six justices — O’Connor, Kennedy and the four liberals — have signed one or more opinions approving the use of international law in deciding cases. In all three instances, Scalia led dissenters in sharply disputing the relevance of international law to interpreting the U.S. Constitution. The meaning of the Eighth Amendment — which protects against cruel and unusual punishment — should not be determined by “foreigners,” he wrote in the juvenile death penalty case.
The debate over international law has moved beyond the court’s chambers. Scalia and Breyer argued the issue in a televised law school forum in Washington in January. Republicans in Congress introduced bills to prohibit federal courts from relying on any foreign sources except English common law to interpret the Constitution. Conservative interest groups said they were dead set against the idea.
Yet even critics of the trend concede that international and foreign law will play an increasingly important role in Supreme Court decisions in coming years. “The court will become more involved in international matters because of globalization,” said the University of California’s Yoo. “We are entering a period where the United States will need to regulate international conduct more intensively.”
Medellín’s case illustrates one context: international treaties. For the court, the case posed a tangle of complicated, unsettled questions. One issue, for example, was whether an international treaty ratified by the United States creates an individual right to enforce the pact in federal courts.
More significantly, the case put the United States on a collision course with the International Court of Justice. The Hague-based tribunal, sometimes called the World Court, ruled in 2004 that 51 Mexican nationals on death rows in the United States were entitled to new hearings because of violations of the consular assistance treaty.
So eager was the Bush administration to skirt the conflict that one month before the Supreme Court’s scheduled argument in Medellín’s case, the president announced that the United States would comply with the World Court decision by directing state courts to grant the new hearings.
Bush’s move gave the justices a chance to duck the issue, too. In a splintered ruling, the court on May 23 dismissed Medellín’s appeal so his lawyers could pursue a new hearing in Texas state courts. But the case, in all likelihood, will come back if Texas courts rule that Medellín waited too long to raise the issue or was not injured by his inability to consult with the Mexican officials.
Human rights groups supporting Medellín’s appeal noted that the United States was an early proponent of the consular assistance treaty — known as the Vienna Convention — and frequently invokes the pact in behalf of Americans arrested in other countries. International law expert Murphy says that with the United States participating in more multinational agreements, it is “inescapable” that U.S. courts will turn to international sources to help decide cases.
Foreign laws can also factor in more routine legal disputes. In one case this year, the court had to decide whether a scheme to smuggle liquor into Canada in order to avoid Canadian taxes could be punished under U.S. mail and wire fraud statutes. The court said yes. On the same day, however, the court decided that a gun-related conviction in a Japanese court did not count under the U.S. law that prohibits possession of a firearm by someone who had been “convicted . . . in any court.”
Despite Scalia’s complaints, most of the justices appear comfortable with using international law. One reason could be their own experiences in traveling to other countries and meeting with foreign judges, according to Peter Spiro, an international law professor at the University of Georgia.
“Courts and judges are a community,” Spiro said. The justices appear to be “intent on gaining the respect of foreign counterparts.”
Spiro even predicts that conservatives will eventually change their tune. “Conservative advocates will start using international law to advance their efforts,” he says. Within a few years, he added, they might be saying, “We’re all internationalists now.”
The six-foot granite monument displaying the Ten Commandments has stood on the grounds of the Texas Capitol since 1961. The framed displays of the tablets in two county courthouses in Kentucky are just a few years old.
As the Supreme Court finishes the last of its decisions for the current term this week, justices will decide whether the displays properly acknowledge the role of religion in American life or violate constitutional principles of separation of church and state. Plaintiffs in two cases sued to have the displays removed.
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Whatever the result, the decisions will almost certainly feature sharp, even bitter, debate among the justices. And they are bound to generate even sharper debate among opposing interest groups that have been warring over religious expression ever since the justices first prohibited government-sponsored prayer in public school classrooms in the 1960s.
The court under Rehnquist has wrought major changes in the interpretation of the two clauses in the First Amendment of the Constitution that deal with religion, mostly but not always to benefit religious groups.
“Religion law is tidier,” says Anthony Picarello Jr., president of the Becket Fund for Religious Liberty, which litigates on the side of religious groups, “but not necessarily improved.”
One clause protects an individual’s right to “free exercise” of religion. The other bars any law “respecting an establishment of religion.” The two clauses can be at odds with each other when the government opts to support religious institutions with taxpayer funds. They can also clash when the government takes special steps to “accommodate” religious practices.
Under Rehnquist, the court has made it easier for the government to fund religious organizations. Most notably, Rehnquist wrote a 5-4 decision in 2002 that upheld school voucher programs. Most of the subsidized students go to parochial schools
In a May 31 ruling, the court also gave Congress or other legislative bodies a green light for passing laws to accommodate religion. The unanimous decision in Cutter v. Wilkinson held that the federal law generally requiring prison officials to accommodate inmates’ religious practices — the Religious Land Use and Institutionalized Persons Act of 2000 — did not amount to an unconstitutional establishment of religion.
Liberal justices dissented from the Rehnquist-led decisions in the 1990s that gradually lowered the barriers for government support for parochial schools. Ira Lupu, an expert on religion and the law at George Washington University, believes the battle is largely over. “There’s a greater receptivity [to public funding of faith-based entities]. . . . That won’t change,” he says.
Religious groups have been disappointed, however, with high court decisions in two areas. Over Rehnquist’s dissents, the court has barred school-sponsored prayers at high school graduation ceremonies or football games. Kennedy and O’Connor sided with the liberal justices in the more recent of the rulings.
In a second area, the court in a 1990 case called Employment Division, Oregon Dept. of Human Resources v. Smith established a stricter rule for exempting religious practices from generally applied laws. The ruling, involving use of peyote in religious ceremonies by American Indians, was driven by the conservative Scalia over objections from the court’s then-liberal bloc and O’Connor.
Despite the court’s efforts to clarify religion decisions, the cases keep coming, and they will probably increase with controversies arising from Bush’s initiative to allow faith-based organizations to deliver federally funded social services.
The justices agreed April 18 to hear the government’s appeal of a decision favoring a small Brazil-based church that uses a banned hallucinogenic tea in its rites. The case tests the scope of the Religious Freedom Restoration Act, which Congress passed in 1993 to limit the effect of the 1990 Smith decision.
The law requires the government to meet a strict test before enforcing a general law that interferes with religious practices. The court in 1997 ruled the law unconstitutional with respect to state and local law.
Other disputes are headed for justices’ consideration in the coming years. The school voucher ruling established that it is not unconstitutional for the government to provide subsidies to parochial school students as part of a generally available, neutral program.
The decision left open, however, the question of whether it is unconstitutional for state or local governments to exclude parochial schools from such programs.
The court ruled, in a 2004 decision written by Rehnquist, that states can deny tax-paid college scholarships to students preparing for careers in the ministry. Voucher proponents, however, said the ruling had no bearing on public school programs.
The issue of school prayer might also return. Religious groups have tried to circumvent the court’s decisions by encouraging individual students to deliver prayers at ceremonies without school sponsorship. The Ten Commandments decisions will also set the stage for more disputes if, as seems likely, the rulings permit displays in some circumstances but not others.
Bush’s faith-based initiative is already generating cases in lower federal courts, though none have reached the justices yet. One question in a pending case against the Salvation Army concerns whether religious organizations can accept public funds and hire only people of a certain faith.
Rehnquist’’s retirement would deprive religious groups of one of the court’s strongest voices for lowering barriers between church and state. But Bush’s strong support of religious groups — and social conservatives’ influence in politics surrounding the judiciary — suggest that the next high court nominee will probably line up the way Rehnquist has.
Kenneth Jost is the Supreme Court editor for CQ Press and associate editor of The CQ Researcher, a weekly pubic policy newsletter. CQ Press interns Scott Meisler and Alex Wagner contributed to this story.