THE SUPREME COURT'S new term that begins today promises to be fascinating. Last week, the court added to its docket a set of issues ranging from abortion clinic demonstrations to HMO liability to the constitutionality of the federal Violence Against Women Act. Even before the new additions, the court's schedule contained a number of significant cases.
The challenge to the Violence Against Women Act, which the 4th Circuit struck down as an infringement on state authority, represents an opportunity for the high court to further refine its view of Congress's power to regulate interstate commerce. The question at issue is whether Congress can give rape victims the right to sue their alleged attackers in federal courts even if the attacks have no obvious interstate or commercial dimension. It is not an easy call. If the law is valid, it is hard to imagine anything Congress cannot do under the guise of regulating commerce. On the other hand, striking down such a law could have implications for valuable government initiatives.
Another important federalism question is whether a disturbing decision from last term, holding that Congress cannot generally abrogate state sovereign immunity to allow citizens to sue states for damages, applies to certain statutory civil rights protections. The court already has gone too far in allowing state sovereign immunity to free the states from accountability to federal law, though it has carved out a civil rights exception. The question this term is whether that exception is broad enough to be meaningful.
The court also will have the opportunity to weigh in on campaign finance when it reviews an 8th Circuit decision striking down Missouri state contribution limits. This case is important as a bellwether for the prospects of campaign finance reform in the courts. If the 8th Circuit decision is affirmed, campaign finance reform will be a lost cause.
Another key case is the tobacco industry's challenge to the authority of the FDA to regulate cigarettes as a drug delivery device. The 4th Circuit held that tobacco products are not subject to regulation under the Food, Drug and Cosmetics Act even though they seem clearly to be, in the law's words, "intended to affect the structure or any function of the body." If this decision stands, the industry will get another pass.
A number of interesting First Amendment cases also will be decided. These include whether public universities can require student activities fees to fund student organizations that engage in political activities. The court also will tackle the thorny question of whether federal money can be used to help religious schools obtain secular educational materials on the same basis that nonreligious institutions receive such assistance.
In the area of race, the court has a case that is sure to be a hot button. The 9th Circuit upheld a Hawaii law that makes descendants of Hawaiian natives alone eligible to vote for members of a statewide board that handles native affairs and alone eligible to receive the money this board dispenses. If the Supreme Court does not reverse the 9th Circuit's decision, it will validate one of the most overt racial disparities specifically enshrined in American law today.