State Bar of California California Bar Journal
Home Page Official Publication of the State Bar of California August2004
MCLE Self-Study
You Need to Know
Trials Digest
Contact CBJ

Supreme Court focused on fairness

Key decisions on how government treats individuals

By Erwin Chemerinsky

Sentencing Guidelines

The most important theme of the just-completed Supreme Court term is that process matters. Many of the term’s most significant cases involved issues concerning how the government may treat individuals. May people be held as enemy combatants without any access to the courts? Can a state government be sued when a courtroom is not accessible to people with disabilities and a man has to crawl on his hands and knees to a second floor courtroom? Must the jury decide whether a person has committed offenses that result in a significantly longer sentence? In these, and many other cases, the Supreme Court ruled against the government and in favor of ensuring fair processes.

In many ways, October Term 2003 was much like most of the recent terms of the Supreme Court. The court decided 73 cases after briefing and oral argument; that is exactly the same number of cases decided the year before. There were 21 5-4 decisions, about the same proportion as in recent past years. As always, the most common majority in the 5-4 rulings was comprised of Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas. They were the majority in 10 of the 5-4 decisions. Also as always, the next most common majority — in four of the cases — was comprised of Justices John Paul Stevens, O’Connor, David Souter, Ruth Bader Ginsburg and Stephen Breyer. As in most recent years, Justice O’Connor was the justice most frequently in the majority in 5-4 decisions, 17 times this year.

Yet, this statistical summary fails to reveal the most powerful message of the term that ended June 29. The court, often with the most conservative justices in the lead, acted to ensure that the government treat individuals with a fair and just process.

Civil liberties and war on terrorism

From a social and constitutional perspective, the most important cases of the year involved challenges to actions taken by the Bush administration and the Justice Department as part of the war on terrorism. Since Sept. 11, the Bush administration repeatedly has claimed the authority to hold American citizens as enemy combatants without any judicial review. In three decisions, the court emphatically rejected that position.

In Rasul v. Bush, the court held that those being detained in Guatanamo Bay have the right to have a habeas corpus petition heard in federal court. In Hamdi v. Rumsfeld, the court, by an 8-1 margin, held that an American citizen apprehended in a foreign country and held as an enemy combatant must be accorded due process and a meaningful factual hearing. In Padilla v. Rumsfeld, the court dismissed on jurisdictional grounds a challenge by an American citizen apprehended in the United States and held as an enemy combatant. The court ruled that Jose Padilla needed to sue in federal court in South Carolina where he is being held, rather than in New York, where the case was litigated. But at least five justices — Stevens, Souter, Ginsburg and Breyer dissenting in Padilla, and Scalia dissenting in Hamdi — clearly signaled that they would rule in favor of Padilla and hold that the government has no authority to detain an American citizen arrested in the United States as an enemy combatant.

The significance of these cases can be appreciated only in the context of the Bush administration’s position in the Supreme Court and in the lower federal courts. In each of these cases, the government argued that it had unreviewable authority to hold individuals as enemy combatants as part of the war on terrorism. But the Supreme Court emphatically rejected this position and held that courts can review detentions, even of those who are being held as part of the war on terrorism.

Criminal procedure

From a practical perspective, in terms of what occurs in courts every day, the most important rulings of the year were two criminal cases. In Crawford v. Washington, the court limited the admissibility of hearsay evidence against criminal defendants. In Blakely v. Washington, the court greatly expanded the role of the jury in criminal sentencing. Both of these decisions were in favor of criminal defendants, and in both the majority opinion was written by Justice Scalia. 

Previously, in Ohio v. Roberts, the Supreme Court ruled that an out-of-court statement could be used against a criminal defendant if the declarant was unavailable to testify and if the statement was reliable. But in Crawford v. Washington, the court expressly overruled its earlier decision and held that it violates the Confrontation Clause of the Sixth Amendment to introduce testimony against a defendant where there had not been the opportunity for cross-examination. This changes the law of evidence followed in every criminal court, state and federal, in the United States. 

The case involved the ability of a prosecutor to use a wife’s statements to the police against her husband when she was unavailable to testify at trial because of her husband’s invoking the spousal privilege. The trial court allowed the statements to be used because they were reliable and the declarant was unavailable. But in a 7-2 decision, with Justice Scalia writing for the majority, the court held that hearsay evidence may not be admitted on this basis. 

Crawford means that hearsay evidence must be excluded in criminal cases when: 1) it is offered for the truth of the matter asserted; 2) the declarant did not testify at trial and the defendant did not have an earlier opportunity to cross-examine the declarant; and 3) the hearsay is testimonial in character. The latter is going to be the subject of enormous confusion and litigation. Can a dying declaration be admitted? What about an excited utterance? The court gave little guidance as what is “testimonial.”

(Click to Enlarge)

The Supreme Court’s ruling in Blakely v. Washington will dramatically change sentencing in criminal cases in federal courts and in states across the country. The court held that any factor which leads to a sentence greater than would be imposed based on the jury’s finding of guilt, or based on what the defendant has admitted, must be proven to a jury beyond a reasonable doubt. Countless factors that judges have used to impose greater sentences now must be found by a jury in criminal cases.

The case involved Ralph Howard Blakely Jr., a man in Washington who was convicted by a jury of kidnapping his estranged wife. The sentence for this crime, under Washington law, is 53 months in prison. But the judge, in sentencing, found that the defendant committed the crime with “deliberate cruelty” and increased the penalty to 90 months in prison. The 90 months was still within the statutory maximum for the crime.

The issue was whether the finding of deliberate cruelty was a sentencing factor that could be determined by the judge, or whether it is deemed an element of the offense which must be found by the jury. The key Supreme Court precedent was Apprendi v. New Jersey, which concluded that any factor, other than a prior conviction, which leads to a sentence greater than the statutory maximum must be proven to a jury beyond a reasonable doubt. Apprendi involved a man who shot a gun into a home owned by an African-American family. The maximum sentence for his crime was 10 years in prison. But the judge found that the crime was race-motivated and, pursuant to a New Jersey hate crime law, sentenced the defendant to 12 years in prison. The Supreme Court ruled that the jury must find the hate motivation beyond a reasonable doubt.

But the ruling in Blakely extended Apprendi to sentences within the statutory maximum. Although in a footnote Justice Scalia said that the court was not considering the federal sentencing guidelines, the federal sentencing guidelines, like Washington’s law in Blakely, involves a system where a judge can enhance (or decrease) a sentence based on various factors. 

Blakely will greatly expand the role of the jury in sentencing and change the nature of criminal trials. Juries often will need to issue special verdicts and perhaps it will be necessary to routinely separate trials into two phases, one to consider the defendant’s guilt and the other to evaluate the factors that relate to punishment.


For the last decade, the Supreme Court repeatedly has ruled in favor of states’ rights and against federal power. But not this year. In Frew v. Hawkins, the court held that state officers may be sued to enforce the terms of a consent decree. Texas had been sued to enforce provisions of the Social Security Act concerning preventative medical care for children. Texas settled the suit and a consent decree was entered. Texas, however, failed to comply with its promises and a suit was brought against both the state and its officers. The Fifth Circuit ruled that sovereign immunity barred such enforcement actions, but the Supreme Court unanimously reversed and held that state officers can be sued to ensure compliance with consent decrees.

In Tennessee v. Lane, the court held that state governments may be sued for discriminating against people with disabilities with regard to the fundamental right of access to the courts. In recent years, the court had ruled that Congress could authorize suits against state governments only when it acts pursuant to section five of the Fourteenth Amendment. The court thus concluded that federal laws prohibiting patent infringement, age discrimination in employment and disability discrimination in employment could not be used to sue state governments because the laws did not fit within the scope of Congress’ powers under section five of the Fourteenth Amendment.

Tennessee v. Lane involved a man who because of his disabilities had to crawl on his hands and knees to reach a second floor courtroom where he was a criminal defendant. Justice Stevens, writing for the court, emphasized that there is a well-established fundamental right of access to the courts and that Congress may enforce it by authorizing suits against state governments.

The decision thus fits with the decision from a year earlier in Nevada Department of Human Resources v. Hibbs, which held that state governments may be sued for violating the Family and Medical Leave Act because the law was designed to remedy gender discrimination, a type of discrimination which receives heightened scrutiny under equal protection. Together, Lane and Hibbs establish that Congress has more authority to act under section five of the Fourteenth Amendment, and thus to authorize suits against state governments, when it is dealing with claims of discrimination or violations of rights which receive heightened scrutiny.

Alien Tort Claims Act

The Alien Tort Claims Act, a federal statute enacted in 1789, authorizes suits for torts in violation of the law of nations. In Sosa v. Alvarez-Machain, the Supreme Court held that civil suits for money damages can be brought pursuant to this law for serious violations of human rights. Although the court unanimously ruled against the plaintiff, Dr. Humberto Alvarez-Machain, six justices expressly took the position that others may sue under this law. Alvarez-Machain, a Mexican national, was kidnapped and brought for a trial to this country where he was acquitted.

The court, in an opinion by Justice Souter, said that Alvarez-Machain’s relatively brief detention did not amount to the type of offense that would have been actionable under the law when it was adopted. Justice Souter stressed that the types of suits that can be brought under the act are limited, but he was emphatic that claims can be brought for serious violations of human rights. 

Other decisions

These, of course, are just a few of the important decisions of the term. There were many other significant rulings that were less about ensuring fair process. In McConnell v. Federal Election Commission, the Supreme Court upheld key provisions of the Bipartisan Campaign Finance Reform Act, including those limiting “soft money” raised by political parties and spent on behalf of candidates and restricting broadcast advertising by corporations and unions for or against specific candidates.

In Ashcroft v. ACLU, the court upheld a preliminary injunction of the Child Online Protection Act, which requires that commercial Web sites containing sexually explicit material do age verification. The court, in a 5-4 decision, stressed that less restrictive alternatives, such as filtering devices, be used. 

In Locke v. Davey, the court ruled that free exercise of religion is not violated when a state government refuses to allow its scholarship to be used by a student wishing to pursue devotional studies for ordination as a minister. The court stressed that the government may fund such studies, but is not constitutionally required to do so.

In Hiibel v. Sixth Judicial Dist. Court of Nevada, the court held that a state statute requiring a person to identify him- or herself when stopped by a police officer does not violate his or her right to privacy as protected under the Fourth Amendment. In two cases, the court considered whether the intentional violation of Miranda by police officers requires exclusion of evidence gained as a result of the police violations.

In one, Missouri v. Seibert, the court held that subsequent statements must be excluded, even if Miranda warnings were given before the statements were repeated. But in United States v. Patane, the court said that tangible evidence could be introduced even if it resulted from violations of Miranda


The cases described above share another common characteristic: they leave open important unanswered questions.

What type of hearing must be accorded enemy combatants? When is hearsay evidence admissible against criminal defendants?

Can the federal sentencing guidelines survive? When else may state governments be sued for discriminating against people with disabilities?

These, and countless other questions raised by these decisions, will be litigated in lower courts for years and ultimately have to be resolved by the Supreme Court.

Erwin Chemerinsky is the Alston & Bird Professor of Law at Duke University Law School.

Contact Us Site Map Notices Privacy Policy
© 2024 The State Bar of California