In an indication of the politics swirling around the case, competing demonstrations were held outside the Supreme Court during the arguments. One side, led by voucher families bused and flown in from Cleveland and Milwaukee, invoked the politically seductive cry of "parent choice" as the justification for using public dollars to pay for private religious schools. The other side, organized by the NAACP and People for the American Way, argued that tax dollars should be used for public schools open to all children and responsible to the public at large.
Vouchers have been a bedrock of the conservative education agenda and its goals of privatizing the public education system and of providing tax dollars for religious education. The ability to move that agenda forward has been hampered by the legal cloud hanging over vouchers, however. In December 1999, a federal district court found that the Cleveland voucher program violated the Constitution's Establishment Clause, and the Sixth Circuit Court of Appeals upheld that decision a year later.
To the extent one can predict Supreme Court decisions, four justices are seen as likely to uphold the Appeals Court and declare the Cleveland program unconstitutional: Justices Breyer, Ruth Ginsburg, John Paul Stevens, and David Souter. Four justices are seen as sympathetic to vouchers and willing to declare the Cleveland program constitutional: Chief Justice William Rehnquist and Justices Clarence Thomas, Anthony Kennedy and Scalia. Justice Sandra Day O'Connor is seen as the crucial swing vote, and she was most active in questioning attorneys on both sides of the issue.
Many observers expect the Court to issue a narrow legal opinion that speaks specifically to the Cleveland situation. But even a narrow opinion would carry enormous political weight. If the Court declares the Cleveland program constitutional, voucher plans will likely proliferate at the local, state, and national level, taking needed resources and energy away from reforms to improve public education. Just as clearly, a decision striking down the Cleveland program will be a setback to the voucher movement, making it less likely that politicians will put their efforts into voucher plans that would end up in the courts.
In a highly unusual move underscoring the case's importance, oral arguments were extended beyond the usual 60 minutes to 80 minutes. Each side was given 40 minutes to argue their case and answer questions. Three lawyers argued in support of the state of Ohio and its voucher program - including the Bush Administration's Solicitor General, Theodore Olson; two argued against. A decision is expected before the Court's term ends in June.