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.
 Other 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.
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