What Supreme Court ignores tells as much as what it addresses


Sometimes the cases the U.S. Supreme Court does not agree to review tells as much about the high court’s mood as those cases it decides to hear. That’s the situation this week as the high court continued to proceed with a caution that is becoming familiar in the weeks since a new member and new chief justice came aboard.

The court, for example, declined to take a case in which evangelist Jerry Falwell sought to shut down a Web site whose domain name is a misspelling of his name and which is devoted to criticizing his views on gays. The court also dismissed an old case in which relatives of Gen. Rene Schneider, former head of the Chilean army, sought to hold former Secretary of State Henry Kissinger responsible for his killing in 1970.

Even the more substantive decisions came in the form of declining to review cases. The decision not to take an appeal from Los Angeles Roman Catholic Archbishop Roger Mahony has the effect of forcing the church to turn over 21 pages of pastoral counseling records that may hold evidence of sexual molestation by priests to the L.A. district attorney — and will probably require similar disclosure in hundreds of civil lawsuits nationwide.

There are reasons to be concerned about a wholesale assault on the privacy of churches and other institutions. As a general rule private records should not be available to government on a whim or a hunch. But these cases involve alleged criminal activity. Even if government has created too many legislative crimes — and it has — sexual assault on a minor would be a crime under the most libertarian of legal systems, and gathering evidence of such outrageous activity can legitimately trump claims of privacy.

The court’s decision not to take the case of two Uighur Muslims who lived in China and ended up in the Guantanamo prison camp was sad but not surprising. The two men in question are Muslims who got caught in a roundup of suspected terrorists in Afghanistan. The U.S. military has determined they are not enemy combatants, so there is no legitimate reason to continue to hold them. But the U.S. does not want to turn them over to the government of China, which persecutes its small Muslim minority.

It would have been nice for the Supreme Court to shortcut the procedure by taking the case. But ruling that the case must be heard by a lower federal court first was justifiable. The Supreme Court is an appellate court, not a trier of fact.
The court won’t be able to avoid controversy forever. In Hudson v. Michigan it will have to rule on the circumstances under which noknock warrant can be served on drug suspects. In Burlington Northern. v. White it must decide what constitutes illegal retaliation against an employee who filed a sexual harassment complaint against a superior.

Look for a flurry of controversy in late May and June. But for now the court is cautious.