Justices took on big issues, ducked others

WASHINGTON -- The just-completed Supreme Court session will be remembered for landmark decisions limiting the president's wartime powers, but the justices passed on opportunities to do much more.

More than two years after the Sept. 11 terrorist attacks, the Supreme Court confronted hard questions about the balance of security and liberty in a changed and dangerous world, and came out mostly on the side of liberty.

Yet even in ruling that the government cannot indefinitely detain terrorism suspects and deny them access to courts, the justices did not quite finish what they started. They declined to rule on the most significant of the terrorism issues before them this term -- that of a U.S. citizen seized in America and held essentially incommunicado without charges or trial.

The court also ducked a politically sensitive challenge to the Pledge of Allegiance, ruling that an atheist father didn't have authority to sue over the phrase "under God" in the patriotic oath his young daughter recites in school.

The justices backed off another case about White House secrecy, leaving for another day the question of whether Vice President Dick Cheney must reveal inner workings of his energy task force. They also tiptoed around a major test of free speech on the Internet and issued only a very limited ruling allowing wheelchair users and other disabled people more rights in court.

In some instances, the court showed it does not have all the answers, and in others it seemed to say we'll get back to you, said Washington lawyer Thomas Goldstein, who argued before the court in three of its 74 cases this term.

In the terrorism cases especially, "what they said is significant, but it's not the whole story. It's like giving people one chapter of a book at a time," Goldstein said.

The court has had the stability to take such an approach.

The same nine justices have served together for a remarkable 10 years, the longest such period in the modern history of the court. The justices say they get along well despite their differences.

Although they are mostly in their late 60s and 70s, none has announced any plan to leave. Many lawyers predict no retirements at least until next year, after the presidential election in November.

Retirement speculation

Public speculation about retirements makes the justices uncomfortable, but they might prefer it to attention trained on the court this year because of the actions of its most obstreperous member.

Justice Antonin Scalia disqualified himself from the Pledge of Allegiance case after making candid public remarks about it, but he refused to do the same when it was revealed that he had gone duck hunting with Cheney while the court was considering Cheney's appeal in the energy task force case.

Scalia, a Ronald Reagan appointee and close friend of the vice president, said the vacation was acceptable socializing that wouldn't cloud his judgment. "If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined," he wrote in announcing his decision to stay on the case.

The three cases about the detention of suspected terrorists marked the court's most significant statements in a half-century about whether war changes usual assumptions about constitutional protections and presidential power.

The court said the government can hold foreign-born fighters and a U.S. citizen it collectively calls "enemy combatants," but that it cannot do so indefinitely or without any review by the courts. The rulings mean detainees in the war on terror have some rights, but it is not yet clear how far they reach.

In the short term, the most important lesson of the terrorism cases is simply that the court will not be silent, even if it said less than it might have, lawyers said.

There is value in a measured approach, said lawyer Donald Ayer, a former deputy attorney general under President George H.W. Bush and once a law clerk to Chief Justice William H. Rehnquist.

"If you look at the work of the court as a whole it is an amazingly careful and responsible set of decisions," Ayer said. "If you don't agree with all of them at least you have to give them credit for being broad in their vision and scope and thoughtful and careful at the same time."

For a court that frequently divides 5-4 along conservative-liberal lines, the terrorism votes were notable. The court voted 8-1 that U.S.-born detainee Yaser Esam Hamdi may challenge his captivity and 6-3 that nearly 600 detainees at a prison camp at Guantanamo Bay, Cuba, can have their day in court.

Only in the last and least conclusive terrorism ruling did the court split along the familiar line, with Rehnquist leading the conservatives to rule that Brooklyn-born "dirty bomb" suspect Jose Padilla must refile his lawsuit in a different court.

As in years past, the court resolved about a quarter of its cases by 5-4 votes.