California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA — SEPTEMBER 2000
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Supreme Court
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ing that the government violates the establishment clause of the First Amendment when it encourages prayer at public school events.

In Stenberg v. Carhart, 120 S.Ct. 2597 (2000), the court declared unconstitutional a state law prohibiting “partial birth abortions.” Nebraska, like 30 other states, prohibited the procedure called “partial birth abortions,” which was defined in the law as the intentional removal of a significant part of a living fetus from the womb for the purposes of then aborting it. In a 5-4 decision, with Justice Breyer writing the majority opinion, joined by Justices Stevens, O’Connor, Souter and Ginsburg, the court held that the Nebraska law was an unconstitutional undue burden on a woman’s right to abortion. The five justices in the majority emphatically reaffirmed that a woman’s right to choose is protected by the First Amendment and the government cannot place an undue burden on the right.

Erwin ChemerinskyOther cases also followed and reaffirmed precedent. In Nixon v. Shrink Missouri Government PAC, 120 S.Ct. 897 (2000), the court upheld a state law imposing limits on contributions to political candidates. The court adhered to its approach for the last quarter century and held that the government may restrict political contributions, but not campaign expenditures. In City of Erie, Pa. v. Pap’s A.M., 120 S.Ct. 1382 (2000), the court followed precedent and held that the government can prohibit nude dancing.

Departing from precedent as to the First Amendment

The two most noteworthy departures from precedent involved other aspects of the First Amendment. In Mitchell v. Helms, 120 S.Ct. 2348 (2000), the court overruled two earlier decisions from the 1970s and held that the government may provide instructional equipment to parochial schools. Significantly, there was no majority opinion for the court.  Jus-tice Thomas wrote for a plurality of four and argued that the government should be able to provide any aid to parochial schools, even for religious instruction, so long as all schools are treated equally.

Justice O’Connor, in a concurring opinion joined by Justice Breyer, said that the government may not provide aid that will be used for religious instruction. Justice Souter, joined by Justices Stevens and Ginsburg, dissented and urged following well-established precedents that the government cannot provide aid that could be used for religious instruction. The absence of a majority opinion adds great confusion to the law in this area and makes it difficult to predict whether the court will uphold or invalidate voucher programs that can be used for parochial school education.

In Boy Scouts v. Dale, 120 S.Ct. 2446 (2000), the court ruled that the Boy Scouts have a constitutional right, based on freedom of association, to exclude gays. It is very difficult to reconcile this case with prior rulings which held that the government has a compelling interest in ending discrimination and that rejected claims of freedom of association as a basis for violating state laws prohibiting private clubs and groups from discriminating.

Federalism again

As in each of the last several terms, the court again used federalism principles to invalidate federal laws and immunize state governments from suit. In United States v. Morrison, 120 S.Ct. 1740 (2000), the Supreme Court declared unconstitutional a provision of the Violence Against Women Act that authorizes civil suit by victims of gender-motivated violence. Chief Justice Rehn-quist wrote for the court and held that the federal law exceeded the scope of Congress’ authority under both the commerce clause and section five of the Fourteenth Amendment. 

In Kimel v. Florida Board of Regents, 120 S.Ct. 631 (2000), the court held that the Eleventh Amendment and state sovereign immunity bars suits against state governments for violating the Age Discrimina-tion in Employment Act.

Both cases were 5-4 decisions, with the majority comprised of Chief Justice Rehn-quist and Justices O’Connor, Scalia, Kennedy and Thomas.

Criminal defendants win

One of the most extraordinary aspects of the term was the success of criminal defendants. Criminal defendants prevailed in two of the three Fourth Amend-ment cases, both of the Fifth Amend-ment cases, three of the four habeas corpus cases, and in two important sentencing decisions.

For example, in Florida v. J.L., 120 S.Ct. 1375 (2000), the court unanimously held that an anonymous tip providing a description but not the name of a person accused of having a concealed weapon is not sufficient for reasonable suspicion to justify a stop and frisk. In Bond v. United States, 120 S.Ct. 1462 (2000), the court ruled that manipulation of bus passenger’s luggage to find contraband is a search under the Fourth Amendment.

One of the most important criminal cases of the term involved sentencing. In Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the court held that any factor that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt. Apprendi shot a gun into a home, a crime that would be punishable by five to 10 years in prison, but a 12-year prison sentence was imposed because the judge concluded that the crime was hate-motivated. The Supreme Court ruled that this was not simply a factor in sentencing, but rather an element of the offense that required proof beyond a reasonable doubt. Apprendi surely will lead to a flood of suits by federal and state prisoners and require a reconsideration of sentencing practices throughout the country.

Conclusion

October term 1999 had an extraordinary number of blockbuster cases. There was plenty to please and displease almost everyone. Perhaps the safest conclusion is that with so many 5-4 decisions (21 of 73 cases), the outcome of the presidential election is likely to be enormously important in determining the future direction of constitutional law.

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science, University of Southern California Law School.