With less than four weeks remaining in the October 2005 term of the United States Supreme Court, fully two dozen cases are still to be decided. Like the four cases announced this morning, many of them involve arcane legal issues of relatively little interest to the general public. But, as happens every June, several of the cases left for last minute decision are among the most important of the year, involving questions of substantial legal significance and public concern. Their resolution may shed significant light on the future course of the newly reconstituted Court. Not surprisingly, the picture which emerges is not likely to be a pretty one.
Among the cases to be decided by the end of June are a challenge by developers to the current interpretation of the Clean Water Act which, if successful, will permit the development and destruction of thousands of acres of previously protected wetlands; an attack on the long standing principle that evidence seized by police in violation of a defendant's Fourth Amendment rights should be suppressed; a challenge to Vermont's campaign finance laws which, if decided broadly against Vermont, could emasculate Federal campaign finance reform; and several important death penalty cases, including one involving the standard of proof required for a condemned man to demonstrate his actual innocence in post conviction habeas corpus proceedings. (In a murder case where the state claimed at trial that blood and sperm found on the victim was the defendant's, modern DNA testing now proves that it was not, but the lower court held that even that evidence was insufficient to require a new trial.) If the Supreme Court fails to reverse, all legal efforts to prevent the defendants execution will be exhausted.
And finally, of course, there is Hamdan vs. Rumsfeld, the case that will resolve the President's assertion of a right to try Guantanamo prisoners before military tribunals under procedures he alone creates, for crimes he alone defines, unregulated by the Geneva Convention and without supervision or consideration of any kind by American courts.
If, as many Supreme Court observers predict, Chief Justice Roberts and Justice Alito join in lockstep with Justices Scalia and Thomas, it is quite likely that these cases will be decided against the environment, against election reform, against privacy, against innocence and against the rule of law.
A week ago, on the last Monday in May, America celebrated the memory of those men and women who lost their lives in our nation's wars. We may soon need to declare a new Memorial Day, celebrated on the last Monday in June, in memory of a Supreme Court which, for the past fifty years, has usually served our nation as an instrument of freedom and justice - but which no longer exists.