Most Supreme Court cases raise hard issues. A few deal with easy ones. Two such cases provide the backdrop for the May 24 decision holding–with a unanimity that is rare in Fourth Amendment cases–that the Constitution bars police from taking news reporters and photographers into homes without the residents’ consent.

The ruling was a welcome vindication of what Chief Justice William H. Rehnquist called ”the right of residential privacy at the core of the Fourth Amendment.” So why had 24 of the nation’s leading news-and-entertainment organizations urged the Justices to rule the other way–to bless media invasions of privacy piggybacked on police raids?

Why had they suggested in a friend-of-the-court brief that journalists should be able to violate the sanctity of your home–perhaps even to come peering into your bedroom–just about any time the constabulary opts for publicity while executing a search or arrest warrant?

Why, for that matter, had some of the same news organizations filed another brief, in March 1998, urging the Justices to uphold the claim of Paladin Press–publisher of a murder manual titled Hit Man: A Technical Manual for Independent Contractors–to First Amendment immunity from liability to the families of three victims of a contract killer who had meticulously followed the book’s instructions?

Paladin settled the case on May 21 for an unspecified sum in the millions, spurred in part by a Michigan jury’s $ 25 million verdict on May 7 against Warner Bros.’ The Jenny Jones Show. That award resulted from a lawsuit by the family of a gay man who was shot to death after a prearranged, surprise announcement during a taping that he had a crush on another male guest.

While racial gerrymandering of election districts is unconstitutional, race-conscious political gerrymandering is not.

That is the sensible message of the Supreme Court’s May 17 decision holding unanimously that the boundaries of a North Carolina congressional district had not been proven unconstitutional–not yet, at least–and sending the case back to a lower court for further proceedings.

Justice Clarence Thomas’ brief opinion (joined by four other Justices) in the case, Hunt vs. Cromartie, may help steer the Court’s history of conflicted and confusing jurisprudence in this area toward a coherent resting place.

It at least gives states a better road map on how to get through the decennial redistricting after next year’s census without running afoul of the courts. And it represents the clearest acknowledgment so far by the Court’s conservatives that the redistricting process cannot be made completely ”colorblind,” because the politicians who draw the lines cannot help but be aware of racial voting patterns.

In past decisions, Thomas and the four other conservative Justices have struck down the blatant racial gerrymandering that the Justice Department for years pressured states to adopt in order to create as many majority-black and majority-Hispanic districts as possible.

Now these five have joined the four more-liberal Justices in specifying that the Court will allow states to engage in political gerrymandering even when the results include heavily black or Hispanic districts.

The Supreme Court has set the stage for a momentous ruling next year not only on whether the Food and Drug Administration can regulate tobacco — and perhaps even ban it someday — but also, more broadly, on the powers of the President and his appointees to make law without a clear congressional mandate.
     
This is one of those hard cases that is likely to make bad law no matter how well the Justices do their jobs. A win for either side might well have important — and troubling — consequences.

A victory for the Clinton FDA could indirectly diminish the role and stature of the legislative branch by pushing to new heights the powers of executive branch agencies to make law. An FDA loss, on the other hand, could result in more tobacco addiction and tobacco-related deaths than would otherwise occur, and could cast a legal cloud over other agencies’ bold initiatives.

The best (if least likely) outcome would be for Congress to moot this case by shaking off the partisan paralysis into which it has sunk — on issues ranging from Kosovo to Social Security — and passing a comprehensive, regulatory regime specifying how the FDA and other agencies should seek to cut down the tobacco death toll of 400,000 Americans a year.

But Congress failed to do that last year — in part because so many members are addicted to tobacco money. One result was a policy vacuum, which was partially filled by the far-from-perfect $208 billion financial settlement last November to end the lawsuits by 46 state attorneys general against the tobacco industry. The settlement included some advertising restrictions but no comprehensive plan to protect children from tobacco addiction.

It was 2002, and the big law firm’s profits were down. So when nine senior associates came up for promotion to partnership, only Jane made the cut. During the next few months, the eight others — Tom, Bill, Harry, Kirk, George, Sally, Peggy, and Mary — sued the firm, one by one. All of them complained of job discrimination. And each of them belonged to a group enjoying special protection under the ever-more-encompassing federal civil rights laws.
     
Tom sued under the Clinton-sponsored 1999 law protecting parents against workplace discrimination. He claimed that the firm’s partners had criticized him for billing "only" 2,000 hours that year and for seeking to avoid weekend and travel assignments to make time for things such as coaching his daughter’s soccer team.

Bill sued under another new law: the one barring discrimination based on sexual orientation. Among his complaints was that the firm’s partners had excluding him and his live-in companion from networking get-togethers with their families, and had pressed him harder to work weekends than they had pressed co- workers with children (like Tom).

Harry, a 45-year-old former schoolteacher who had made a mid-career switch to law, sued for age discrimination. Kirk accused the almost all white partnership of racial discrimination. George, who had recently lost his eyesight, sued for discrimination against the disabled. Sally sued for pregnancy discrimination: She received only dead-end assignments after her second maternity leave. Peggy sued for discrimination based on her religion (fundamentalist Christian), saying she had been treated like a member of a strange cult.

While fueled by demagogic rhetoric and political opportunism, the current uproar over allegedly racist police practices in New York City and elsewhere has spotlighted one clearly abusive practice that moderates, conservatives, and, indeed, police chiefs should join liberals in assailing: racial profiling. That is the apparently widespread police habit of using skin color or ethnicity as a factor in deciding whom to stop and search for evidence of crime.

Just this week, New Jersey Gov. Christine Todd Whitman admitted that a 111-page internal review had confirmed a 1996 judicial ruling that some state police officers had engaged in racial profiling in deciding which cars to search during traffic stops on the turnpike.

Around the country, thousands of minority-group members have been humiliated by police stops and searches, often for conduct no more suspicious than "driving while black" or walking the streets of their communities. This, in turn, has helped to breed a deeply corrosive mistrust of law enforcement.

The full extent and the perniciousness of racial profiling are difficult to grasp for those of us who have not been targeted. The practice is virtually invisible to whites, except in the minority of cases in which police find illegal drugs or guns and make arrests. Almost all police organizations deny that they condone racial profiling. It is easily camouflaged by nonracial pretexts for searching cars and pedestrians; and it is sometimes confused with proper police work.

It is inarguable that NATO’s bombing of Yugoslavia — provoked by atrocities in a civil war in a sovereign nation that has not attacked any NATO member — is hard to square either with the United Nations Charter or with the 1949 treaty that created NATO itself.
     
But for Americans, there is a more fundamental question: Can it be squared with the Constitution?

That document reserves the power "to declare war" to the Congress. And although the meaning of this phrase has evolved over time, the framers clearly intended to bar Presidents from doing what President Clinton has done: sending U.S. forces into hostilities abroad without explicit votes of approval from both House and Senate.

(The Senate, in a nonbinding vote on March 23, approved U.S. participation in NATO "military air operations and missile strikes"; the House, in a March 11 vote, authorized only a "peacekeeping operation, implementing a Kosovo peace agreement," which later fell through.)

These problems have received little attention because of an ever-more-pervasive assumption: that the original understandings of the Constitution, the U.N. Charter, and the North Atlantic Treaty are anachronisms, and that these legal texts should be stretched, twisted, or even ignored as necessary to cope with today’s exigencies.

My colleague Clive Crook, for example, noted in his April 10 column that "NATO’s actions are illegal both under the terms of the U.N. Charter and according to the alliance’s own rules" — only to add that this was not a good reason to let "the slaughter of the Kosovars proceed."

The independent-counsel statute will expire on June 30 unless Congress acts. With the law under attack both by Democrats who formerly championed it and by Republicans who have never liked it, a diverse, bipartisan group may seek to salvage a slimmed-down version.

Some Senators, including Democrats Joseph I. Lieberman of Connecticut and Carl Levin of Michigan, and Republicans Susan Collins of Maine and Arlen Specter of Pennsylvania, seem to be groping for some way to avoid reverting to the pre-Watergate system, in which allegations of crimes by the President and his top appointees were disposed of by the Attorney General.

Several of the veterans of the independent-counsel wars who have testified in the four illuminating Senate Governmental Affairs Committee hearings held since late February have urged retention of the statute, albeit with major changes. One theme in this plea has been, in the words of Washington lawyer Nathan Lewin, that ”the concept of an independent counsel–not answerable to the Attorney General or the President–is essential for public confidence in government.”

The arguments for keeping some kind of court-appointed independent-counsel system are sincere, thoughtful–but, in my view, ultimately unconvincing. It is time to let this statute die, and to give the Justice Department’s prosecutors–a more honest and professional bunch than they are given credit for being–a chance to show they can do the job.

Two fundamental problems with the statute transcend such ephemera as Democrats’ hatred of its current personification, Kenneth Starr, and Republicans’ hatred of Iran-Contra Independent Counsel Lawrence E. Walsh.

The first problem is that the independent-counsel system has failed almost utterly to achieve its purpose of fostering public confidence that investigations of alleged high-level criminality are untainted by partisan bias.

The Supreme Court and the National Collegiate Athletic Association, like lots of institutions, have an awkward problem.

It’s what lawyers call ”disparate impact”: the statistical underrepresentation of black and Hispanic people among those found to be the best qualified for coveted positions ranging from elite law clerks to student-athletes.

Such disparities have spawned many a civil rights lawsuit, and in recent months have inspired a controversy over judicial hiring practices, complete with protesters led by the NAACP shouting ”discrimination” outside the Court.

Two recent developments should give the justices food for thought about how they and the rest of the federal judiciary might fare if–as Rep. Jesse Jackson Jr., D-Ill., recently proposed–they were subject to the same civil rights rules that they, and Congress, enforce against others.

First, on March 8, U.S. District Judge Ronald L. Buckwalter of Philadelphia voided the NCAA’s minimum test-score requirement for student-athletes on the ground that it subjected African-Americans to racial discrimination, in violation of federal civil rights law.

His reasons were that (1) a far smaller proportion of blacks (79.6 percent in 1997) than of whites (95.8 percent in 1997) have scored well enough on the tests to qualify under the NCAA rule’s cutoff score, and (2) the NCAA had not carried the (virtually insuperable) burden of proving to the judge’s satisfaction that the rule’s ”particular cutoff score” was sufficiently effective at improving graduation rates–its main purpose–to justify this disparate racial impact.

The NCAA is expected to appeal.

A March 5 federal appeals court ruling has propelled toward the Supreme Court a dispute that could have a major impact on the relative powers of Congress, the states, and the high court itself.

The immediate question is whether the 7-4 appellate decision was correct in striking down a provision of the Violence Against Women Act of 1994 (VAWA) authorizing alleged victims of ”crimes of violence motivated by gender” to sue their alleged victimizers in federal court. It was designed to help harmed women, ranging from abused wives to rape victims.

The more fundamental question is whether Congress enjoys a virtually unlimited power to regulate or punish private, noncommercial conduct traditionally governed by state law, as the four dissenters implied, or, contrarily, is subject to constitutional limits rooted in federalism and enforced by the courts, as the majority inferred from recent Supreme Court precedents.

The case is also a striking example of how politicized justice in America has become. The U.S. Court of Appeals for the 4th Circuit (in Richmond, Va.) decided it by a straight party- line vote: All seven judges voting to strike down the statute were named by Republican Presidents; the four dissenters, by Democrats.

On still another level, the facts dramatize either the need to provide federal remedies for women victimized by male violence or–depending on whom you believe in this she-said, he- said dispute–the dangers of presuming guilt when women (especially white women) accuse men (especially black men) of rape (especially in the Old South).

The plaintiff (Christy Brzonkala) claims that she was raped and verbally abused by two black football players (Antonio Morrison and James Crawford) in September 1994, when all three were students at Virginia Polytechnic University.