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Since the nation's founding, the U.S. has debated how much power a President should have, and how to balance national security with individual liberty, especially in a time of war. But the terrorist attacks on Sept. 11, 2001, transformed that debate as the U.S. found itself at war not with another nation, but with a stateless organization.
In general, the courts have not been eager to second-guess presidential actions taken in the name of protecting the nation. In 1944, for example, in a decision now widely discredited, the Supreme Court upheld President Franklin D. Roosevelt's executive order during World War II to put 120,000 Japanese-Americans in internment camps.
Today, the big issue is the prison at Guantánamo Bay, Cuba, which President Obama has promised to close by January. Guantánamo holds about 200 men who were captured all over the world, including some of the alleged ringleaders of the 9/11 attacks.
"In inheriting Guantánamo, the administration is inheriting something like the Japanese internment camps," says Eric M. Freedman, a law professor at Hofstra University.
Last year, the Court said the Guantánamo detainees are entitled to at least some of the constitutional protections generally accorded to the accused. And the Obama administration says that some of them should be released, but the process of closing the prison and deciding where the more dangerous prisoners should go is moving slowly. If no other country will take them, the Court has been asked to decide whether they must be released into the United States.
Legal experts say the Court may look to history in considering how much power President Obama should have in the ongoing fight against terrorism. To do that, the Justices may have to decide whether the terrorist threat will be handled by the criminal courts or the military justice system.
"It is a hybrid warrior we're fighting in a hybrid war,'' says Glenn M. Sulmasy, a national-security law expert at the Coast Guard Academy, "and it doesn't fit neatly in the criminal justice structure or in the law-of-war structure."
Race
Race has long been one of the most difficult issues for the Court, as it has for the nation. In recent years, many cases have centered on the constitutionality of affirmative action, in which race (or gender) is considered in hiring and school admissions. In general, proponents of affirmative action say it's needed to make up for past discrimination, while opponents say it's reverse discrimination.
The Roberts Court has been skeptical of race-conscious decisions by the government in cases about education, employment, and voting. In an important 2007 decision, the Court ruled that public schools cannot explicitly take race into account to achieve or maintain integration.
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Chief Justice John G. Roberts wrote in that ruling.
The Court applied the same principle in June, ruling 5-to-4that New Haven, Connecticut, could not throw out the results of a promotional exam for firefighters because black firefighters did poorly on it. The case, Ricci v. DeStefano, was brought by white and Hispanic firefighters who did qualify for promotions but were denied them, and said they were victims of reverse discrimination.
"This decision will change the landscape of civil rights law," says Sheila Foster, a law professor at Fordham University in New York.
Such decisions have prompted some to wonder if the Roberts Court might be moving toward effectively abolishing affirmative action and similar programs in the near future.
That's what Justice Stephen G. Breyer seemed to hint at when he wrote his dissent in the 2007 case that ended the use of race by school districts trying to maintain integration. Referring to the landmark Brown v. Board of Education ruling in 1954 that desegregated schools, he wrote: "The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown."
Teen Rights
What's more important: the rights of students, or the needs of schools to keep order and maintain a safe environment? That's one of the key questions in the area of teen rights in which the Court is trying to find the right balance.
In 1969, the landmark case Tinker v. Des Moines Independent School District established that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
But in recent years, the Court has generally sided with schools, particularly in cases involving drugs and school security. In 2007, in Morse v. Frederick, the Court backed an Alaska principal who suspended a student for displaying a banner that said "Bong Hits 4 Jesus" at a school-sponsored event off school property. The student said the banner was a prank and the words were gibberish, but a majority of Justices said the sign advocated drug use. The decision effectively cut back the First Amendment rights of students.
However, in June the Court issued a ruling that supported students' right to privacy at school. Savana Redding was 13 years old and in the 8th grade when she was strip-searched in 2003 by school officials in Arizona, who wrongly suspected her of having prescription-strength ibuprofen. In Safford Unified School District v. Redding, the Justices ruled 8-to-1 that the strip search had violated the Fourth Amendment's ban on unreasonable searches.
"It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude," wrote Justice John Paul Stevens.
The case attracted national attention and gave rise to an intense debate over how much leeway school officials should have in enforcing zero-tolerance policies for drugs and violence. Some parents were outraged by the intrusiveness of the search, while others worried about tying the hands of school officials charged with keeping their children safe.
First Amendment
It's been more than 25 years since the Court last recognized a new category of speech with so little value that it did not merit the protections of the First Amendment. This year, the Court will consider if depictions of cruelty to animals should join obscenity and "fighting words" (words likely to incite violence) as speech unworthy of constitutional protection.
The new case, United States v. Stevens, arose from the conviction of a Virginia man sentenced to 37 months in prison for selling videos of pit bulls fighting each other and attacking other animals. A 1999 federal law makes it a crime to create or sell such videos and other depictions of cruelty to animals. The Court will decide whether that law violates the First Amendment.
The next big free-speech frontier is the Internet. Aside from striking down laws aimed at Internet pornography, the Supreme Court has not yet addressed free-speech issues as they relate to new technologies.
In the next few years, however, cases involving online harassment, the First Amendment rights of bloggers, and whether websites like Craigslist may be held responsible for what users post will likely reach the Court.
Environment
The environmental movement of the 1960s inspired a series of laws to prevent pollution and protect natural resources. In the following decades, the Court was a friendly forum for environmental groups, interpreting laws such as the Endangered Species Act and the Clean Air Act broadly.
Lately, though, the Court has been less receptive to environmental cases. The Roberts Court has ruled against environmentalists in five major cases in the past term. In Winter v. Natural Resources Defense Council, a case that pitted environmental protection against national security needs, the Court refused to restrict submarine training exercises using sonar, which was said to harm whales and dolphins off the coast of California. In effect, the Court said that national security is more important than the protection of marine mammals.
As President Obama looks for ways to tackle environmental challenges like climate change, some opponents are likely to fight back, setting the stage for confrontations that may well reach the Supreme Court.
Social Issues
Last spring, the legislatures of Vermont, New Hampshire, and Maine legalized same-sex marriages, while Connecticut and Iowa recognized them through court rulings, bringing to six the number of states in which same-sex couples can now marry. (Massachusetts legalized same-sex marriage in 2004.)
And last year, the California Supreme Court allowed same-sex marriages, but voters then banned them in a ballot initiative known as Proposition 8. In May, the California Supreme Court upheld the ban.
All this activity makes it likely that the question of whether gay and lesbian couples have a constitutional right to marry will head to the Supreme Court—perhaps by way of a lawsuit challenging the California ban.
But since the same-sex marriage issue is under discussion in so many state courts and legislatures around the country, the Supreme Court may be wary of making a controversial decision that binds the entire nation, as it did in Roe v. Wade, the 1973 decision that established a right to abortion.
Some critics of that decision, including Justice Ruth Bader Ginsburg (a longtime supporter of abortion rights), have said that Roe moved too fast in making a policy decision that could have worked its way through state legislatures. There is no major abortion case on the horizon, and at least five of the Court's nine justices appear to support the central holding of Roe v. Wade.
Gun Rights
The Second Amendment, which protects "the right of the people to keep and bear arms," is more than 200 years old, but it was not until last year that the Supreme Court weighed in on how it applies to gun-control laws.
Many courts and scholars had long assumed that the Amendment protected only a right to own guns tied to a state militia. But the Supreme Court, in a 5-to-4 decision, ruled that the Second Amendment protects a fundamental, individual right.
The decision in District of Columbia v. Heller struck down parts of Washington, D.C.'s gun-control law, the strictest in the nation. But because the case came from the District of Columbia and thus involved only federal law, the Court did not resolve the important question of whether the Second Amendment's protections also apply to state and local laws.
The ruling also left open the question of whether the Second Amendment protects an individual's right to have a gun for purposes beyond self-defense in the home.
"There is likely to be quite a flood of litigation to try to flesh out precisely what regulations are to be permitted and which ones are not," says Robert A. Levy, a lawyer on the winning side of the case.
Most state and local gun restrictions appear to be allowed under the ruling, including licensing laws, limits on the commercial sale of guns, restrictions on guns in places like schools and government buildings, and prohibitions on the possession of firearms by felons and the mentally ill.
"The Heller case is a landmark decision that has not changed very much at all," says Adam Winkler, a law professor at the University of California, Los Angeles. "To date, the federal courts have not invalidated a single gun-control law on the basis of the Second Amendment since Heller."
Death Penalty & Harsh Sentences
The Eighth Amendment prohibits "cruel and unusual punishments," but the legal definition of that phrase has evolved over time as social standards have changed.
For example, the Supreme Court has narrowed the scope of the death penalty several times in recent years, saying it cannot be applied to juvenile offenders, the mentally retarded, or people who commit crimes other than murder.
But the Court has shown no inclination to abolish capital punishment. In fact, it upheld the use of lethal injection even though there is some evidence that the chemicals used in executions can produce extremely painful deaths.
This fall, the Court will consider two cases that question whether the Eighth Amendment's ban on cruel and unusual punishment should extend to sentencing juvenile offenders to life in prison without parole.
Questioning the constitutionality of life without parole for juveniles is the logical next step following the court's 2005 decision in Roper v. Simmons, which struck down the death penalty for crimes committed by 16- and 17-year-olds. Writing for the majority in that case, Justice Anthony M. Kennedy said that even older teenagers are different from adults: less mature, more impulsive, more susceptible to peer pressure, and more likely to change for the better over time.
"The principles driving Roper," says Douglas A. Berman, a sentencing law expert at Ohio State University, "would seem to suggest that its impact does not stop at the execution chamber."
