The issue everyone will be watching as the Supreme Court opens its 1980 term tomorrow is whether women must be included in the military draft registration program.
It is the perfect candidate for this year's most controversial case, for it could touch millions of lives and fuel one of the most vigorous debates of the decade -- the debate over the place of women in American life.
Except for its visibility, however, it isn't so different than much of the court's 1980 docket. The caseload is, once again, a guide to most of our national aches and pains.
The cases are about environmental pollution, the struggle over goverment regulation, the problem of industrial productivity, of busing, of party politics and of bad conditions in institutions for the retarded. By the end of the term in July, the court will have considered the CIA, Nixon, Kissinger, crime in the streets and executive suites and the radio listening habits of millions of Americans.
And there are any number of families in crisis: An unmarried teen-age daughter being told by a doctor that she cannot have an abortion unless her parents are notified; a couple being told by the state that they are unfit to be parents; a woman having her family's home mortgaged out from under her, without her knowledge, by her financially strapped husband.
Collectively, the cases illustrate how dramatically the law is intertwined with peoples' lives, how deeply it penetrates, and how much there is of it. The 1,102 cases begging consideration and the 77 already accepted for consideration by the court make tomorrow the most crowded opening day in Surpeme Court history. The justices confront twice the number of cases they did on the First Monday in October 10 years ago.
And the docket deomonstrates how intractable the problems are. Many of the cases this year are unfinished business, questions the court has been unable or unwilling to resolve in the past with no assurance of a resolution now. Sex and Race Equality
Two major sex discrimination cases this year parallel the debate over the Equal Rights Amendment. If women are to get the good things men have, how many and which of the less desirable benefits of maleness must they also receive to be truly equal under the law?
The court is shortly expected to act on the draft (Rostker vs. Goldberg). The justices are being asked to decide whether President Carter's draft registration program is unconstitutionally discriminatory because it excluded women.
A three judge panel in Philadelphia held last summer that it illegally discriminated between men and women, stigmatizing women by excluding them. The judges left the government with the choice of registering both sexes, or registering no one at all. The order stemming from that decision has been held up pending the Supreme Court's consideration.
In many respects, the draft case pits the Supreme Court against itself. The federal judges in Philadelphia based their decision, in part, on Burger court actions elevating women to a protected legal status despite the absence of Equal Rights Amendment.Before the court's decisions over the last decade on sex equality, a government needed little justification for making legal distinctions based on gender. Almost any excuse would suffice. Now, courts require the showing of a substantial reason.
The government thinks it has one. The draft registration program, it argues, was to ready the nation for an emergency mobilization of combat troops. aThe reason for excluding women is that they do not fight in wars.
The judges in Philadelphia found that justification insubstantial. "Congress could not constitutionally require registration . . . of only black citizens or only white citizens, or single out any political or religious group simply because those groups contain sufficient persons to fill the needs of the Selective Service System," the panel said. "It is not enough to show that their [women's] inclusion was not needed; it would have to be shown that their exclusion was needed."
At the same time it has ben raising the legal status of women, however, the Burger court and courts before it have given the affairs of the Pentagon a special status in the law, allowing the Army, for example, to abridge the free speech of its troops in ways which would be constitutionally intolerable for other branches of government. In its defense of the draft, the government is saying that the special status exempts the military from otherwise applicable constitutional requirements.
A case already accepted by the court from California raises a related question: whether statutory rape laws, which generally apply only to men, are unconstitutionally discriminatory.
California law, like the laws of most other states, prohibits a male from having sexual intercourse with a female under age 18, unless, of course, the two are married. A female, on the other hand, is perfectly free to sleep with an under-age boy.
Michael M (the courts protect his anonymity) was 17 1/2 in 1978 when he and a friend invited a 16-year-old girl to drink some wine with them near the railroad tracks in Sonoma County. The 16-year-old, called Sharon for purposes of this case, and Michael M. ultimately moved off by themselves and began kissing. One thing led to another and the boy wound up demanding sexual intercourse. She refused. He struck her. She submitted.
He was charged with statutory rape. When he argued that the law was discriminatory, the California Supreme Court ruled that the law was supported not by "mere social convention but by the immutable physiological fact that it is the female exclusively who can become pregnant." The law is legitimate because it is aimed at "the tragic human costs of illegitimate teen-age pregnancies."
Two other sex discrimination cases accepted by the court deal with benefits for women.
One, Minnick vs. California Department of Corrections, is another test of how far government can go in "affirmative action." The Corrections Department instituted, without specific legislative authorization, an affirmative action program for racial minorities and women within the workforce of the prison system.
The Supreme Court has already issued three major opinions on the subject, including last year's approval of "minority set-aside" federal contracts, but most of the questions are yet to be answered. Whether a state agency, without a specific finding of past discrimination, can favor blacks, Chicanos and women over white males is the question in the Minnick case.
Yet another gender case, Kirchberg vs. Feenstra, challenges a Louisiana law that allowed a husband to mortgage a jointly owned home without his wife's consent.
A race discrimination case from Memphis, Tenn. (Memphis vs. Green) challenges, as a constitutionally prohibited "badge of slavery," the erection of a barrier by the city separating a white section of town from a black section. Government Regulation
Controversy orver government regulation is clogging the federal court dockets just as it is campaign rhetoric. The Supreme Court has accepted or may accept at least 11 important issues of regulation this term.
One case, Environmental Protection Agency vs. National Crushed Stone Association, is part of a major multi-industry challenge to government regulations in all fields, especially environmental and occupational health and safety. Faced with what is considered financially crippling regulations, industry is asking the courts, in effect, to make the regulators be what they would define as reasonable.
This year's EPA case raises the question of whether that agency, in formulating rules to protect streams, rivers and lakes from pollution from the coal, crushed stone and sand and gravel industries, must consider whether the industry can afford to comply with them.
Though it involves a different agency and a different law, the EPA case is like last year's benzine case. In that instance, the court failed to answer the question on whether the costs of regulation justified the benefits from it.
And it is also a lot like a case awaiting acceptance this year -- the cotton dust case. The textile industry is demanding that the Occupational Safety and Health Administration consider whether regulations designed to prevent lung disease in its factories cost more than they are worth.
The industry challenge has also sprawned a new movement in the bureaucracy -- call it "regulators' rights." The regulators are increasingly concerned about what they consider meddling by the courts with the nuts and bolts of regulations Congress purportedly left to the executive branch. Only the EPA, that agency told the Supreme Court, is entitled to make these decisions because of the "complex and scientific nature" of the laws involved.
Other regulatory cases accepted by the court this year include:
A challenge by Standard Oil of California to the Federal Trade Commission's investigative powers. The company wants the courts to be allowed to review the FTC administrative complaints that precede an investigation. The government contends that this would tie up investigations in court for years.
A fight between the state of Illinois and the City of Milwaukee over sewage dumping in Lake Michigan.
A challenge by the Federal Communications Commission to lower court decisions and radio listener demands that it condition license renewals on whether a radio station's format classical music, rock, talk -- has been altered in the best interests of a community. The FCC is arguing that such screening violates the First Amendment in FCC vs. WNCN Listeners Guild.
An attempt by the San Diego Gas and Electric Co. to recover millions of dollars for the "taking" of its land by the City of San Diego, which blocked its efforts to locate a nuclear power facility on company property. The Family
The court, once again, is being asked to balance its professed respect for the integrity of the family against pressures created by rights it has carved out in other areas. The justices have already denied parents a veto power over abortions obtained by daughters.
This year, a case accepted from Utah asks whether parents may have a legally guaranteed right to be told of the aboration.
Utah's law -- one of many enacted by state's after the court's 1973 legalization of abortion -- prevents doctors from performing an abortion on a minor without notifying the parents.
A 15-year-old unmarried girl who didn't want her parents to know challenged the law after being refused an abortion by a doctor who feared prosecution. The Supreme Court accepted H. L. vs. Matheson last term.
A second family case, this one from Delaware, challenges the procedures by which social agencies and the courts take children away from parents deemed unfit. The case, Doe vs. Delaware, involves a father convicted of incest.
A waiting acceptance is a controversey publicized last year by CBS' "60 Minutes." Jarrett vs. Jarrett stems from the Illinois Supreme Court's decision to remove children from the custody of a divorced woman because she was living out of wedlock. The ex-husband demanded and received custody. Politics, judiciary
The court also has before it potentially important disputes involving politics, the media and the judicial system.
It has decided to hear Wisconsin's dispute with the Democratic Party over that state's open primary, which allows Republicans to vote in the Democratic primaries and vice versa. It may accept challenges by several small parties -- the Citizens Party and the Socialist Workers Party among them -- to West Virginia's difficult procedures for getting on the ballot.
Among media cases, the court (in Chandler vs. Florida) will review Florida's carefully controlled system of allowing cameras -- both television and still -- in courtrooms. At least 26 states, including Maryland, are experimenting with electronic media coverage of trials. The court is being asked to consider Massachusetts' exclusion of the news media from a sex offense trial moving minors.
In U.S. vs. Will, the court has decided to consider whether federal judges can have their pay raises cut by Congress like everyone else, except check from the federal treasury. The justices will have conflicts of interest in this case but since there is no one else legally eligible to decide it, they will do so.
In Kissinger vs. Halperin, the government is arguing for complete immunity from damage suits for the president, the secretary of state and top aides to the president. The case stems from the wiretapping of former Nixon foreign policy adviser Morton Halperin.
Another case crucial to the government is U.S. vs. DiFrancesco, in which the Justice Department is seeking constitutional sanction for the practice of appealing sentences it considers too lenient in criminal cases.