New Supreme Court session dominated by church-state, affirmative action and death penalty issues

Saturday, September 29th 2001, 12:00 am

By: News On 6

WASHINGTON (AP) _ Despite widespread predictions of at least one Supreme Court retirement, the same familiar nine justices will take the bench Monday for the start of a new term dominated by a dramatic test of the separation of church and state.

The court also plans to rule on cases involving affirmative action, the death penalty and child pornography, among many other issues. So far, it looks like a year that will draw a moderate amount of interest from the general public, several lawyers and law professors said.

``A medium year, but the main thing to remember is that you can't tell very much at this point,'' said Georgetown University law professor Susan Low Bloch. ``At this point last year, we had no idea there would be a Bush v. Gore.''

That decision defined the court last year and led to deep public division over the court's role in ending ballot recounts in Florida. The bitter 5-4 vote left the justices testy, but they seem to have shaken it off, said University of Virginia law professor A.E. Dick Howard.

``I think the justices will return in a much more amiable state of mind,'' he said.

The conservative-dominated court has gradually redrawn the line governing government involvement in religious education. It could go much further with a Cleveland case that asks whether the Constitution permits taxpayer money to subsidize tuition at church-run schools.

The court will hear the school voucher case sometime early next year, with a decision expected by summer.

The affirmative action case features a small, white-owned construction firm in Colorado and its fight against government programs that help steer business to rival minority firms. Like the voucher case, it presents a constitutional question that also carries great political freight for the Bush administration and conservative voters.

The court seems determined to rule this term on whether it is constitutional to execute the mentally retarded. The court will reconsider its 1989 ruling upholding such executions.

Last week, the court dismissed a case that had become moot, but immediately substituted another appeal from a Death Row inmate with an IQ of 59.

Other highlights of the court schedule so far include two cases dealing with children, pornography and the Internet.

One case asks whether in the freewheeling online world, objectionable material can really be placed off-limits for children without unconstitutionally curbing adults' viewing rights. The other case visits the shadowy world of virtual kiddie porn _ computer images that only appear to show children having sex.

As always, the court will also hear quite a few more mundane, but still significant, cases involving such things as coal taxes and safety rules for barges.

So far, there are no cases with much relevance to the Sept. 11 terrorist attacks. That could change if eventual challenges to changes in immigration rules or other civil liberties questions make speedy trips through lower courts.

``I don't see any immediate effect, but I think the judiciary in general is going to be more receptive to national security, police discretion-type arguments for awhile, and the Supreme Court may be affected by that,'' said Thomas Merrill, constitutional law professor at Northwestern University's law school.

After several terms that featured major questions about the scope of police power to stop and search people, there is no Fourth Amendment blockbuster on the calendar so far.

Brooklyn Law School professor Susan Herman predicted the two smaller search cases the court has accepted will be slam-dunks for law enforcement.

The court has filled its calendar for oral arguments through early February. If the court holds to its recent pattern of hearing between 70 and 80 cases a year, it has room to add 20 or more this term.

The retirement rumors haven't gone away.

All eyes are again on Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor, both past 70 and veterans of 20 years or more on the court. Someone seems sure to leave with a year or two, court scholars said. According to law professor Howard:

``It's hard to imagine (President) Bush's first term passing without one or two vacancies on the court.''