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Supreme Court decided crucial issues

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By Erwin Chemerinsky

For better or worse, America relies on the Supreme Court to be the ultimate arbiter of constitutional law and therefore to resolve some of society’s most difficult and divisive issues. None of the 81 cases decided by the Supreme Court in its October 2001 Term was as important or as controversial as Bush v. Gore in December 2000.

But many of the decisions addressed crucial issues such as the constitutionality of the death penalty for the mentally retarded, of vouchers that can be used in parochial schools, and of random drug testing for students as a condition for participating in extracurricular activities.

Anthony Kennedy
Sandra O'Connor

Again this term, Justices Sandra Day O’Connor and Anthony Kennedy were most likely to be the swing votes determining the results in closely divided cases. There were 17 5-4 decisions, less than the year before when 26 of 78 cases were resolved by a 5-4 margin.

In 10 of the 17 cases, the majority was comprised of Chief Justice William Rehnquist and Justices O’Connor, Antonin Scalia, Kennedy and Clarence Thomas. In four of the 5-4 decisions, the majority was comprised of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer and O’Connor. In the few 5-4 decisions where Justice O’Connor dissented, Justice Kennedy was in the majority. Justice Kennedy dissented only eight times and Justice O’Connor only nine times, as compared with 15 dissents by Justice Breyer, 17 by Justice Souter, 21 by Justice Scalia, and 22 by Justice Stevens.

Some trends were clear this term: the police in criminal cases won; significant limits were imposed on the death penalty; students lost; and the court continued to expand sovereign immunity for state governments.

Criminal procedure

Notably, the police prevailed in every major criminal procedure case of the term. In United States v. Arvizu,122 S.Ct. 744 (2002), the court held that police had sufficient suspicion to stop a driver based on a combination of very innocuous facts: the driver was on a public road near the Mexican border that often is used by smugglers; the car was a minivan commonly driven by smugglers; the driver did not wave to the police officer; the children looked uncomfortable and repeatedly waved. Based on just these factors, the Supreme Court unanimously held that there was reasonable suspicion to justify the stop.

The concern is that the police always can find factors such as these, and the authority of the police to stop motorists has been substantially expanded.

In United States v. Drayton, 122 S.Ct. 2105 (2002), the court held that there is consent when a search is done of a bus passenger who agrees after the officer shows his badge and gets within 12-18 inches of the passenger. The United States Court of Appeals for the Eleventh Circuit had ruled that there only is consent if the reasonable person under the circumstances would feel free to refuse the officer’s request. The Supreme Court rejected that standard and reaffirmed that an officer need not advise a suspect of his or her rights before obtaining consent for a search.

In McKune v. Lile, 122 S.Ct. 2017 (2002), the court held that prison officials did not violate the Fifth Amendment when they revoked certain privileges of an inmate who refused to disclose his sexual history during a sex-treatment offender program.

Kansas required an inmate to admit to prior sexual offenses, with the understanding that the admissions could be used against him, or face transfer to a maximum security prison and loss of visiting privileges with family members and prison income.

Nonetheless, the court said forcing the inmate to make this choice, admitting to crimes or facing loss of privileges, was not sufficiently coercive as to violate the privilege against self-incrimination.

Perhaps the government’s success in criminal procedure cases reflects a court that is more likely to defer to the police after the tragedy of Sept. 11. None of these cases, though, involved accusations of terrorism and it may be a couple of years before such matters get to the high court.

John Stevens

Death penalty

One area where the government did not succeed was in death penalty cases. For the first time in many years, the court imposed significant limits on the imposition of the death penalty. In Atkins v. Virginia, 122 S.Ct. 2242 (2002), the court held that the execution of the mentally retarded is cruel and unusual punishment prohibited by the Constitution.

Justice Stevens, writing for the court in a 6-3 decision, emphasized the trend across the country in outlawing such executions; only 12 states permit the death penalty for the mentally retarded. Justice Stevens also stressed the risk of innocent people being executed because mentally disabled individuals are less able to work with their attorneys and are more likely to make false confessions.

In Ring v. Arizona, 122 S.Ct. 2428 (2002), the court held that the decision as to whether to impose a death sentence is for the jury, not the judge, to make. In a 7-2 decision, the court applied its ruling from two years earlier in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), to hold that the jury must determine whether there are sufficient aggravating factors to warrant capital punishment.

There is no indication that these decisions portend the Supreme Court finding the death penalty unconstitutional. It is doubtful that there is a single vote on the current court for that proposition. But these decisions show that the court is concerned about perfecting the death penalty, especially to help protect innocent people from being wrongly executed.

Clarence Thomas
William Rehnquist

Students’ rights

It was a bad year for students’ rights in the Supreme Court. In Board of Education of Independent School Dist. No. 92 of Pottowotomie County v. Earls, 122 S.Ct. 2559 (2002), the Supreme Court upheld a school district’s policy of requiring random drug testing as a condition for participation in interscholastic activities.

Justice Thomas, joined by Chief Justice Rehnquist and Justices Scalia, Kennedy and Breyer, found that such random testing did not violate the Fourth Amendment because of the school’s interest in deterring drug use and the minimal invasion of privacy of such tests. Undoubtedly, some schools will try to extend this even further and require testing of all students.

In Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002), the court upheld a voucher program which allowed parents to use the vouchers in parochial schools.

Chief Justice Rehnquist, writing for the court in a 5-4 decision, held that the program had the permissible purpose of improving the quality of education and that any assistance to religious institutions was the result of parents’ choice. In Cleveland, over 96 percent of the parents used the vouchers in parochial schools; 83 percent of all the schools participating were religious.

The dissent objected that the program was structured to direct unprecedented government support for religious schools and religious indoctrination.

In Gonzaga University v. Doe, 122 S.Ct. 2268 (2002), the court ruled that there is no private right of action to enforce the Family Educational Rights and Privacy Act (FERPA). This is a key federal statute protecting the privacy of student records, but the court ruled that schools cannot be sued for violations.


One of the most important developments in constitutional law in the last decade has been the Supreme Court aggressively limiting federal power and protecting states’ rights. In a series of 5-4 decisions, the court has constricted the scope of Congress’ authority, revived the Tenth Amendment as a constraint on federal power and expanded state sovereign immunity. The trend continued this year in Federal Maritime Commission v. South Carolina State Ports Authority, 122 S.Ct. 1864 (2002).

The court ruled that Congress, by statute, may not authorize the Federal Maritime Commission to adjudicate complaints filed by private persons against state-run ports; the statutory provision permitting adjudication of such complaints is barred by sovereign immunity. The case involved a shipping company that was denied berths in South Carolina ports.

The company claimed that the state’s decision violated federal law and, in accord with prescribed procedures, sought relief in a federal agency.

Justice Thomas, writing for the court in a 5-4 decision, held that sovereign immunity is broader than the Eleventh Amendment which only bars suits in federal courts. The court held that sovereign immunity means that a state cannot be sued in any tribunal, state or federal, administrative or judicial, without its consent.

Antonin Scalia

Freedom of speech

In some areas, such as the Establishment Clause and federalism, the split on the Supreme Court is ideological and predictable. One area that now defies ideological prediction is freedom of speech. The reality is that conservatives on the court are as likely, or even more likely, to rule in favor of speech claims and against the government than the more moderate and liberal justices.

For example, in Republican Party of Minnesota v. White, 122 S.Ct. 2528 (2002), the five most conservative justices on the court ruled that provisions of the Code of Judicial Conduct preventing judicial candidates from speaking about “disputed legal or political issues” violate the First Amendment. In a 5-4 decision — with Justice Scalia writing an opinion joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Thomas — the court ruled that the restrictions were an impermissible content-based restriction of political speech. The court said that if a state chooses to have judicial elections it cannot keep voters from learning of candidates’ views.

In Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389 (2002), Justice Kennedy wrote the opinion for the court declaring unconstitutional provisions of the Child Pornography Prevention Act of 1996. The law defines child pornography to include computer-generated images of children or adults who are child-like in appearance. The law prohibits “visual depictions” that “appear to be” or “convey the impression” of a minor engaging in sexually explicit conduct.

Justice Kennedy explained that the government’s interest in prohibiting non-obscene sexual material is in safeguarding children from being used in its production. If no children are used, the government cannot ban such material.

The future

Although the Court has set less than half of its docket for next year, already it has granted review in a number of likely very important cases.

Is California’s Three Strikes law constitutional when it is applied to sentence a man to an indeterminate life sentence, with no possibility of parole for 50 years, for stealing $153 worth of videotapes? Are state Interest on Lawyer Trust Account programs, that provide almost $100 million for legal services nationally, constitutional?

Does the federal copyright extension act violate the First Amend-ment? Do state laws prohibiting “intimidation” through activities such as cross burning violate the First Amendment? Are sex offender registration statutes constitutional? Can state governments be sued for violating the Family and Medical Leave Act?

Also, it is very likely that the court will grant review in an important case involving the University of Michigan and the issue of whether public universities may use affirmative action to enhance diversity and benefit minority students.

Again, next year, the court is sure to generate headlines as it resolves vitally important, controversial social and legal issues.

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

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