In another important ruling, with the same split
among the justices, in Palazzolo v. State of Rhode Island, 121 S.Ct.
___ (2001), the court expanded the protections of the takings clause
of the Fifth Amendment. The court ruled that landowners may challenge
government regulations as a taking, even if the laws were in place
when the property was purchased.
But there also were many notable cases where
Justice O'Connor, or occasionally Justice Kennedy, or even sometimes
both, would join with Justices Stevens, Souter, Ginsburg and Breyer to
create the majority. For example, in a major ruling concerning voting
rights, Hunt v. Cromartie, 121 S.Ct. 1452 (2001), the court held that
the government may use race as a factor in drawing election district
lines with the effect of benefiting racial minorities, so long as the
government's objective is political and not affirmative action.
Breyer's opinion, joined by Justices Stevens, Souter, Ginsburg and
O'Connor, said that it is permissible to use race as a factor if the
goal, for example, is preserving a safe seat for an African-American
incumbent or creating a majority Democratic district; race, however,
cannot be the predominant factor if the goal is increasing the number
of minority representatives. As election districts are redrawn in
every state as a result of the 2000 census, this case will be very
important as courts decide countless voting cases.
On the last day of the term, Justice O'Connor
joined the four more moderate justices to produce a very important
victory for civil rights, holding 5-4 in Zadvydas v. Davis, 121 S.Ct.
___ (2001), that the indefinite detention of non-deportable aliens is
illegal. If an alien commits a crime while in the United States, the
federal government will deport the person after he or she completes
the imposed prison sentence. But if no country will accept the
deportation, the person is held in custody indefinitely.
The court, in an opinion by Justice Breyer, said
that to accord the federal government such authority would raise grave
constitutional issues, so the federal immigration laws were
interpreted to deny this power.
Kennedy, too, at times was the key swing vote. In Legal Services
Corporation v. Velazquez, 121 S.Ct. 1043 (2001), the court declared
unconstitutional a federal law that prohibited lawyers receiving Legal
Services Corporation funds from challenging welfare laws. Justice
Kennedy wrote the opinion in the 5-4 decision and was joined by
Justices Stevens, Souter, Ginsburg and Breyer.
No pattern in criminal cases
In criminal cases, there was no consistent
pattern; both police and criminal defendants won important rulings. As
recently as a few years ago, the Rehnquist court resolved the vast
majority of criminal cases in favor of police and prosecutors. But
this term, like last year, produced some notable victories for each
Some of the decisions were major victories for
privacy. For example, in Kyllo v. United States, 121 S.Ct. ___ (2001),
the court ruled that the use of thermal imaging devices directed at a
home to detect activities within it are a search within the meaning of
the Fourth Amendment.
Thermal imaging detects heat and can be used to
see what is occurring in a place. In an unusual division within the
court, Justice Scalia wrote an opinion joined by Justices Souter,
Thomas, Breyer and Ginsburg, finding that the requirements of the
Fourth Amendment must be met when there is thermal imaging of a home.
In City of Indianapolis v. Edmund, 121 S.Ct. 447
(2000), the court found, in a 6-3 decision, that drug checkpoints on
public streets violate the Fourth Amendment. Indianapolis created
roadblocks where the police would peer into cars to look for drugs.
The court concluded that this was an impermissible search.
Also, in Ferguson v. City of Charleston, 121 S.Ct.
1281 (2001), the court, in another 6-3 decision, concluded that a
public hospital's drug testing of pregnant women was
unconstitutional. In both of these cases the court emphasized that
these were searches for law enforcement purposes, to gather evidence
to be used in criminal prosecutions, and
said that this requires adherence to the requirements of the
Fourth Amendment. In both decisions, Justices O'Connor and Kennedy
joined with Jus-tices Stevens, Souter, Ginsburg and Breyer to
constitute the six-justice majority.
Some important Fourth Amend-ment cases were
decided in favor of the police. In Atwater v. City of Lago Vista, 121
S.Ct. 1536 (2001), the court in a 5-4 ruling held that police may
arrest a person who commits a misdemeanor, even if the crime carries
no possibility of a prison sentence.
A woman in Texas was arrested by the police for
not wearing her seatbelt, an offense that under Texas law is
punishable by a maximum $50 fine. Justice Souter, in an opinion joined
by Rehnquist, Scalia, Kennedy and Thomas, ruled that an arrest in such
circumstances is permissible.
The police obviously are not going to use this
authority to arrest every person who gets a traffic ticket or
jaywalks. But when the police want to harass someone, or if the police
want to search someone which is permitted incident to an arrest, then
Atwater will be used to allow the arrest.
The result is a significant expansion of police
Civil rights plaintiffs lose
Plaintiffs in cases involving federal civil
rights statutes generally lose. The most significant changes in the
law this term were in the area of federal civil rights statutes. In
several 5-4 rulings, Justices O'Connor and Kennedy joined with
Rehnquist, Scalia and Thomas to narrow the protections of civil rights
In Circuit City v. Adams, 121 S.Ct. 1302 (2001),
the court ruled that employees cannot sue their employers for
employment discrimination if they have an employment contract that
provides for arbitration of disputes relating to the job. Instead of
getting to go to court where there is trial by jury and all of the
protections of the judicial system, discrimination claims must go to
arbitration when there is such an arbitration clause.
In Alexander v. Sandoval, 121 S.Ct. 1511 (2001),
the court held that recipients of federal money cannot be sued for
engaging in practices that have a racially discriminatory impact
against minorities. Title VI of the 1964 Civil Rights Act says that
recipients of federal funds cannot discriminate based on race. Federal
regulations under this law provide that those getting federal dollars
cannot engage in activities that have a discriminatory effect against
Suits under these regulations have been crucial
in challenging a wide array of discriminatory practices ranging from
litigation against the Metropolitan Transit Authority to suits about
environmental injustices that disproportionately affect minority
Now, however, the court has greatly limited the
ability to bring such suits, robbing civil rights plaintiffs of an
essential weapon in their fight against race discrimination.
In Buckhannon Board v. West Virginia Department
of Health and Human Services, 121 S.Ct. 1835 (2001), the court held
that to be a "prevailing party" under a civil rights attorney's
fees statute, it is not sufficient that the plaintiff in a lawsuit is
a catalyst for legislative action. There must be court-ordered relief,
via a judgment or consent decree. This will bar the recovery of
attorney's fees in cases where litigation induces the government to
change its laws and rules.
Free speech success
Free speech claims often succeed. For example, in Bartnicki v. Vopper, 121 S.Ct. 1753 (2001),
the court held that the First Amendment precludes holding the media
civilly liable for broadcasting a tape of a conversation that was
illegally intercepted and recorded, so long as the media played no
role in the illegal taping and so long as the tape concerned a matter
of public importance.
In Lorillard Tobacco Co. v. Reilly, 121 S.Ct. ___
(2001), the court declared unconstitutional a Massachusetts rule
restricting advertising of tobacco products. The law precluded outdoor
advertisements, such as billboards, within 1,000 feet of a school or
playground and required stores selling tobacco products to place any
advertisements at least five feet above the ground.
The Supreme Court found that the restrictions on
cigarette advertising were pre-empted by federal law and the limits on
cigar and smokeless tobacco ads violated the First Amendment's
protection of commercial speech.
In Good News Club v. Milford Central School, 121
S.Ct. ___ (2001), the court ruled that the First Amendment is violated
by a school's excluding an outside religious organization from use
of its facilities because the group engages in prayer and religious
instruction. In an opinion by Justice Thomas, the court held that this
constituted impermissible restrictions based on the viewpoint of the
As long as there is a United States, Bush v. Gore
will be studied and argued about. It, alone, made October Term 2000
one of the most memorable in American history.
Erwin Chemerinsky is the Sydney M. Irmas Professor of Public
Interest Law, Legal Ethics and Political Science at the University of