Washington Post
November 1, 2001
Justices To Delay Hearing Appeals
By Charles Lane
WASHINGTON -- Forced again by the threat of anthrax to alter its time-honored work patterns, the Supreme Court announced yesterday that it will not be able to consider a long list of pending appeals and other motions this week as planned.
Normally, the nine justices meet behind closed doors each Friday to vote on hundreds of petitions for certiorari, as appeals to the Supreme Court are known. Then, on the following Monday, the court announces which ones it has accepted and rejected. But, with the court's Capitol Hill building closed at least through today, no such list will come out Monday, and petitions scheduled for consideration this Friday will be held over a week, court officials said.
Among the cases affected is an oil industry bid to open the Lewis and Clark National Forest in Montana to drilling.
The justices have had to use makeshift work space since Oct. 26, when the court's building was closed after tests found anthrax spores at its off-site mail-processing warehouse in Prince George's County. Subsequent tests showed that the mailroom in the court's own building was also contaminated.
Supreme Court oral arguments took place this week in the E. Barrett Prettyman Federal Courthouse, while justices and their staff used offices at that building and the Thurgood Marshall Federal Judiciary Center near Union Station.
Attorneys facing filing deadlines in current cases will receive a one-day extension for each day the court remains closed. Applications for stays of execution and other emergency pleas to the court are not affected, because procedures are in place for attorneys to reach court staff at home.
Some 440 court personnel were offered antibiotics and given nasal swab tests last week. All the tests have come back negative, court officials said yesterday. Only after new tests for contamination in the building are completed will the court know whether anyone needs more treatment.
In the court's third straight morning of off-site hearings yesterday, the justices listened to arguments in the long-running case of a Colorado highway construction firm that contends it is being discriminated against by a Transportation Department program designed to steer government business to disadvantaged, minority-owned businesses.
In 1995, the Supreme Court handed Adarand Constructors a victory, holding by a vote of 5 to 4 that such programs must be scrutinized by the courts to ensure that they are "narrowly tailored" to meet "a compelling government interest" in fighting discrimination.
Yesterday's case is Adarand's appeal of a lower federal appeals court decision that the government's program, as revised by the Clinton administration, met that standard.
Although the underlying issue -- an allegation of "reverse discrimination" -- is as hot as any the court handles, the argument focused on whether Adarand had a right to be in court, given the government's claim that it was no longer enforcing the preferences in Colorado.
William Perry Pendley, representing Adarand, insisted that the firm is still subject to contract language giving minorities an unfair advantage, which the government could reactivate at any time. But Solicitor General Theodore B. Olson said that Adarand cannot show it has been injured by the revised program, because it has not yet submitted the low bid on any particular contract.
The court's four more liberal justices, who dissented in the 1995 case, implied that the court should send the matter back to the lower courts to clear up the lingering factual disputes. "This is a court of review, not a court of first view," Justice Ruth Bader Ginsburg told Pendley. But conservative justices seemed interested in possibly ruling on Adarand's claim. "If these [contract] clauses said the government must discriminate against a minority," Justice Anthony M. Kennedy said, "would we let them stand? Not for a single minute."
A decision in the case, Adarand v. Mineta, No. 00-730, is expected by July.
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