HIGH COURT FACES HEFT OF LAST TERM IF NOT THE FLASH

WASHINGTON, Oct. 1 - At first glance, the Supreme Court term that opens on
Monday figures to be a pale imitation of the blockbuster term that
concluded in June.

After all, there is no abortion case on the docket this time, no Miranda,
no school prayer, no gay rights. There are federalism cases, but the debate
over limits on Congressional authority by now has a familiar ring. And just
days ago, the justices decided to sidestep the one case that would surely
have put the term on the map, Microsoft's appeal in the government's
antitrust case.

Despite all that, this is a term that in its own, perhaps less flashy way
might well measure up to the last one for cases of far-reaching consequence.

Among the 47 cases the justices have accepted for argument - possibly 30
more will be added in the next few months - is a case under the Clean Air
Act that offers what may be the most significant test of government
regulation in decades.

One of the new federalism cases, on whether states may be sued for
violating the Americans With Disabilities Act, could prove to be the most
important in the series of recent cases in which the justices have carved
out a widening area of state immunity from the reach of federal statutes.

In addition, a Congressional redistricting case from North Carolina gives
the court a final chance before the next round of post-census
reapportionment to clarify its position on the role of race in the drawing
of district lines.

And in a First Amendment challenge to restrictions on the kind of advocacy
that lawyers in federally financed legal services programs can offer
clients, the court will revisit the increasingly important issue of what
strings can be attached to government grants.

The justices who enter the courtroom at 10 o'clock on Monday morning will
be taking their seats in the glare of an election-year spotlight. They have
served together for more than six years. The interval since Justice Stephen
G. Breyer took the oath on Aug. 3, 1994, is the longest period without
change in the court's makeup since the early 19th century. No justice has
given any indication of retirement plans, but the sense that change is
inevitable, even if not imminent, permeates the opening of the term this year.

Following are some of the new term's most important cases:

Congressional Authority

A series of 5-to-4 decisions in the last four years has constricted the
ability of Congress to apply various federal laws to the states. Last year,
for example, the court ruled that states may not be sued for discriminating
against older workers. This term, the question is whether states may be
sued for violating the Americans With Disabilities Act, a far-reaching
statute that requires all employers to accommodate the needs of qualified
workers with disabilities and places special anti-discrimination
obligations on public agencies.

The case, University of Alabama v. Garrett, No. 99-1240, is highly
significant because it poses a direct challenge to Congress's authority to
enforce the equal protection guarantee of the 14th Amendment.

In the age discrimination case last year, the majority said there was
insufficient evidence that age discrimination by state employers was a
problem so serious as to justify breaching the states' constitutional
immunity from damage suits in federal court. Consequently, in the new case,
supporters of the disability act, including the Clinton administration,
historians and disability rights advocates, have mounted a major effort to
document for the court the extent to which states themselves have
discriminated against people with disabilities, from denial of access to
polling places to involuntary institutionalization and even sterilization.

The historical record is striking, but whether it will prove conclusive is
an open question. The case also poses an important question about how far
beyond the 14th Amendment's nondiscrimination command Congress may may go
in devising remedies or preventive measures. In requiring not only relief
from active discrimination but affirmative acts of accommodation, the
Americans With Disabilities Act goes further than what the equal protection
guarantee itself requires. Whether it goes too far may depend, in turn, on
where the court ranks disability in the hierarchy of equal protection.

It is clear, for example, that age discrimination receives the lowest
judicial scrutiny and racial discrimination the highest. There is some
ambiguity in the court's precedents over whether disability discrimination
ranks at the bottom or somewhere in between, another question that this
complex and far-reaching case may answer.

A second case challenges an exercise of Congress's authority to regulate
interstate commerce, in this instance under the Clean Water Act. The
question in Solid Waste Agency v. United States Army Corps of Engineers,
No. 99-1178, is the validity of a regulation known as the "migratory bird
rule," under which the government has asserted authority to regulate small
intrastate wetlands that are habitats for migratory birds.

The court's recent precedents have emphasized that activity regulated under
the Commerce Clause must itself have a substantial impact on commerce. In
this case, a federal appeals court upheld the regulation on the basis of
the cumulative economic effect of the millions of people who travel across
state lines to hunt or watch migratory birds.

While the case could be resolved on statutory grounds, a constitutional
ruling that directly rejects this "cumulative effects" test would further
restrict Congress's discretion beyond the context of this dispute.

Federal Regulation

The federal appeals court here set off shock waves last year when it
invalidated the Environmental Protection Agency's new standards for smog
and soot under the Clean Air Act. Reviving an analysis that had fallen into
disuse since the New Deal, the appeals court said that by failing to give
the agency meaningful limits on the setting of standards, Congress had
delegated too much legislative authority to the executive branch.

Since many administrative agencies operate within broad and vague grants of
authority, this unexpected judicial revival of the "nondelegation" doctrine
could have major consequences. The Clinton administration appealed the
ruling in Browner v. American Trucking Associations, No. 99-1257.

At the same time, the industry groups that challenged the new standards
have offered an alternative argument to the Supreme Court: that the Clean
Air Act should be reinterpreted as requiring that regulations be justified
under a cost-benefit analysis, and that such a requirement would remove the
law from under the constitutional cloud of the appeals court's
nondelegation analysis. The industry case is American Trucking Associations
v. Browner, No. 99-1426.

Criminal Law

The docket contains an unusual number of criminal cases, with five raising
substantial issues under the Fourth Amendment's prohibition of unreasonable
search and seizure.

Ferguson v. City of Charleston, No. 99-936, is a challenge to the South
Carolina city's program under which selected obstetrics patients at a
municipal hospital were tested for cocaine use, with positive findings
turned over to the local police. Among the 10 plaintiffs are women who were
arrested and taken to jail almost immediately after giving birth. The
Fourth Amendment question is whether the urine tests performed without
warrants were unconstitutional searches or whether, as the city argues,
they were justified by a "special need," beyond the bounds of ordinary law
enforcement, to protect fetal health.

The question in City of Indianapolis v. Edmond, No. 99-1030, is the
validity of a drug-interdiction checkpoint in which trained drug-detecting
dogs sniffed the cars of motorists stopped on a city street. A federal
appeals court rejected the city's argument that because the checkpoints
served a "special need" of protecting health and safety, they should not be
held to the same constitutional standard as a typical law enforcement
program, which would require the police to have a reason to suspect
wrongdoing before stopping a car.

Atwater v. City of Lago Vista, No. 99-1408, asks the court to decide in a
Texas case whether the Fourth Amendment bars a full custodial arrest for an
offense - failure to use a seat belt - that carries no more than a $50
fine. The question in Kyllo v. United States, No. 99-8508, is whether use
of a thermal imaging device, used to detect the heat that is often the
byproduct of a home-growing marijuana operation, is a search that requires
a warrant. Finally, in Illinois v. McArthur, No. 99-1132, the court will
decide whether the police can secure a home from the outside, preventing
the occupant's re-entry while they obtain a warrant to search the premises.

Redistricting

The court will scrutinize North Carolina's 12th Congressional District for
the fourth time since 1993, when a decision called Shaw v. Reno rattled the
political system by indicating that districts drawn predominantly on the
basis of racial considerations are presumptively unconstitutional. The
district was drawn after the 1990 census in order to elect a black
congressman, the first in North Carolina since Reconstruction.

After the earlier decisions, the district is now somewhat more compact and
contains a majority of whites. Nonetheless, a three-judge federal district
court invalidated it again earlier this year. Now called Hunt v. Cromartie,
No. 99-1864, the case raises the question of how a court, reviewing the
record of a district's creation, is supposed to tell whether impermissible
racial considerations or permissible political motives, like protecting
incumbents, were predominant when the Legislature made its choices.

Free Speech

In a 1996 budget bill, Congress put new limits on lawyers who receive money
from the Legal Services Corporation to represent poor people. While the
lawyers may still represent welfare recipients in seeking benefits on a
case-by-case basis, they may not challenge any welfare law or regulation.
The question in Legal Services Corporation v. Velazquez, No. 99-603, is
whether this restriction amounts to an unconstitutional restriction on
speech critical of government policy, as a federal appeals court found.

The court will decide whether journalists may be sued under the federal
wiretap law for disclosing the contents of communications they have reason
to suspect were illegally intercepted. In this case, Bartnicki v. Vopper,
No. 99-1687, a radio talk show host in Pennsylvania, played a tape of a
private cell phone conversation that had been anonymously delivered to him.
The two parties to the conversation sued. A federal appeals court held that
as the passive receiver of newsworthy information, journalists could not be
punished under the wiretap law, despite the privacy interests at stake.