O'Connor pivotal in coming battles

Oct. 1, 2001 at 1:54 PM
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WASHINGTON, Oct. 1 (UPI) -- The Supreme Court began a new term Monday that will probably be marked by a battle between its liberal and conservative wings for the heart and mind of Justice Sandra Day O'Connor.

But with that battle still in the future, the Supreme Court opened its term with a nod to history and a moment of silence for those killed and injured in the Sept. 11 terror attacks.

Chief Justice William Rehnquist said the court "would take a moment to recognize the terrible loss caused by the terrorist attacks on America .... I know our hearts go out to the families of those killed and injured. We extend our condolences to the Solicitor General of the United States Theodore Olson for the loss of his wife, Barbara."

Olson, who was sitting in the courtroom as is customary for the solicitor general on the first day of the new Supreme Court term, wiped away a tear at that point. Barbara Olson was aboard a hijacked plane that was deliberately crashed into the Pentagon. She called Olson several times by cell phone before the end.

Olson was seated with two of his predecessors, the Clinton administration's Seth Waxman and the first Bush administration's Kenneth Starr.

Rehnquist saluted the "extraordinary bravery and compassion from Americans from all walks of life" during and following the attacks, and asked for a moment of silence "to grieve with those who mourn, and honor those who have heroically performed their duty."

The chief justice also took time to note that for the first time in its more than two centuries of history, the Supreme Court has a woman marshal, Pamela Talkin.

The court then settled down to hear the first in a week of rather mundane arguments. The real social controversies will come later this term, and O'Connor would appear to be poised for a key role.

A moderate conservative, O'Connor, has occasionally voted with the liberals on many social issues, particularly for abortion rights and on church and state issues.

At other times, she has sided with the conservatives on controversial issues, particularly affirmative action.

The most contentious case on the court's horizon is one dealing with the constitutionality of taxpayer-funded vouchers for private school tuition, including tuition at religious schools. The justices said last month they would hear the case out of Cleveland sometime this term. Though argument is not yet scheduled, it will probably be heard sometime in later January or early February.

Another case being considered for argument by the Supreme Court deals with Virginia's minute-of-silence law for state schools. The American Civil Liberties Union is challenging the law as a breach of the wall between church and state, saying the statute was designed to "promote prayer."

The justices could decide within the next month or two whether to hear the case this term. Another case still being considered for argument is the Microsoft antitrust suit. The company wants the Supreme Court to intervene, blocking any action in the lower courts, where a federal judge is considering penalties against the company for anti-competitive conduct.

Basically, the Supreme Court is broken down into two wings. The consistent liberals are Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

The consistent conservatives are Chief Justice Rehnquist and Justices Antonin Scalia and Clarence Thomas, with Scalia providing the leadership of that wing.

Another key vote, moderate Justice Anthony Kennedy, has increasingly voted with the conservative's in recent terms.

Which often leaves O'Connor as the usual key vote whenever there is a divisive social issue, such as school vouchers or a minute-of-silence law.

Last month, Rehnquist refused to block a lower-court ruling that upholds Virginia's minute-of-silence law. The chief justice oversees the 4th U.S. Circuit, of which Virginia is a part.

But O'Connor could turn either way on the issue.

In 1985's Wallace vs. Jaffree, O'Connor was part of a majority that struck down Alabama's minute-of-silence law as unconstitutional. At the same time, she wrote an opinion concurring with the majority, but saying without the religious elements present in the Alabama law, there was no constitutional threat from a "roomful of silent, thoughtful children."

On Oct. 2, the justices will hear argument on whether the Federal Communications Commission has the authority to regulate the utility pole attachments used by cable TV systems to provide high-speed Internet access.

On Oct. 10, the court will hear argument on whether an employee's arbitration agreement prevents the Equal Employment Opportunity Commission from bringing an enforcement action against an employer.

On the same day, the justices will hear a complicated telecommunications case that will have an impact on consumers' pocketbooks. At issue is what elements must be considered by federal regulators when setting the rates that established telephone companies charge their new-founded competitors.

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