Constitutional Law
Jul. 22, 2000
Judicial Stalemate
The U.S. Supreme Court completed its term on June 28 by handing down four blockbuster cases: allowing greater government aid to parochial schools; protecting the right of the Boy Scouts to exclude gays; invalidating a state law prohibiting partial-birth abortions; and upholding a state law restricting speech activities near abortion clinics.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
The U.S. Supreme Court completed its term on June 28 by handing down four blockbuster cases: allowing greater government aid to parochial schools; protecting the right of the Boy Scouts to exclude gays; invalidating a state law prohibiting partial-birth abortions; and upholding a state law restricting speech activities near abortion clinics.
The final day was representative of a term that was filled with an exceptional number of high-profile decisions in many different areas that are likely to be important for years to come. The flurry of opinions was typical of the term in another, more subtle way: There was something to please and displease almost everyone.
The primary conclusion to draw from the year is that the Rehnquist court defies simple labels. In many areas, it is a very conservative court, but in other areas, such as in reaffirming Miranda v. Arizona, 384 U.S. 436 (1966), and in disallowing student prayers at football games, the court is a bitter disappointment to conservatives.
The court decided 73 cases this term, fewer than half the number it decided in the term a decade ago. Of the 73 decisions, 21 were by a 5-4 margin; this is more 5-4 decisions than in any term in the last decade. Of the 21 5-4 rulings, 14 had the five most conservative justices - William Rehnquist, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas - as the majority.
The Rehnquist court's conservatism was most manifest in the area of federalism. Over the last several years, the court has significantly narrowed the scope of congressional power and expanded state sovereign immunity. Virtually all of these cases have been 5-4 decisions, with strong dissents by the more moderate bloc of Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
Two key cases fit this pattern this year. In United States v. Morrison, 120 S.Ct. 1740 (2000), the court declared unconstitutional a provision of the Violence Against Women Act that authorizes civil suits by victims of gender-motivated violence. Chief Justice Rehnquist wrote for the court and held that the federal law exceeded the scope of Congress's authority under both the Commerce Clause and Section 5 of the 14th Amendment.
The court rejected the constitutionality of the law under the Commerce Clause, despite congressional findings that violence against women costs the American economy billions of dollars a year. The court held that such findings are insufficient to justify congressional regulation of noneconomic activity in areas traditionally regulated by state governments.
The court also held that Congress, under Section 5 of the 14th Amendment, cannot regulate private behavior. Morrison undoubtedly will lead to challenges to a vast array of federal laws, ranging from civil-rights statutes to criminal laws to environmental regulations.
The other major federalism decision of the term was Kimel v. Fla. Bd. of Regents, 120 S.Ct. 631 (2000), which held that state governments may not be sued in federal court for violating the Age Discrimination in Employment Act.
In the past few years, the court has held that Congress can authorize suits against state governments only when it legislates pursuant to Section 5 of the 14th Amendment and not under any other federal power, such as the Commerce Clause. Moreover, the court has greatly narrowed the scope of Congress's authority under Section 5, holding that Congress may not expand the scope of rights or create new rights but instead may only provide remedies for rights recognized by the courts.
In Kimel, the court held that the Age Discrimination in Employment Act is not a valid exercise of Congress's Section 5 power because it provides significantly greater protections than the U.S. Constitution. This major limit on Congress's ability to prevent and remedy discrimination means that millions of state government employees no longer have federal protection against age discrimination.
Another major conservative victory, in a quite different area of the law, concerns government aid to parochial schools. In Mitchell v. Helms 2000 Daily Journal D.A.R. 7105 (June 28, 2000), the court overruled earlier decisions and held that the government may give instructional equipment, such as computers and audiovisual equipment, to parochial schools. But the scope of the conservatives' triumph was limited by the lack of a majority opinion for the court. Thomas wrote a plurality opinion joined by Rehnquist, Scalia and Kennedy.
Thomas proposed a radical change in the law of the Establishment Clause, arguing that the government should be able to give any aid to parochial schools, even for religious instruction, so long as it does not favor some religions over others. Indeed, Thomas said that denying aid to parochial schools reflects unjustified hostility to religion.
O'Connor, joined by Breyer, concurred in the judgment and criticized Thomas' opinion as a radical shift in the law. O'Connor stated that the basic rule should be that the government cannot give aid that will be used for religious instruction. She upheld providing instructional equipment with the condition that it be used solely for secular education.
Although Mitchell v. Helms is a victory for those who favor allowing more government aid to religious schools, the case leaves open the major issue in the area: Will voucher programs be constitutional? Four justices unequivocally indicated that they would allow such aid to go to parochial schools. But the future votes of O'Connor and Breyer on the issue are unclear because it is uncertain whether they will view vouchers as an impermissible government subsidy for religious education.
One other major victory for conservatives was in Boy Scouts of America v. Dale, 2000 Daily Journal D.A.R. 6933 (June 28, 2000), which held that it is an unconstitutional violation of freedom of association for a state anti-discrimination law to be applied to require the Boy Scouts to use gay men as scout masters. The New Jersey Supreme Court held that the Boy Scouts violated the New Jersey public-accommodation law by excluding gays. The Supreme Court, in a 5-4 decision, held that the Boy Scouts' freedom of association protects their right to express an anti-gay message through discrimination. In the future, other private groups that want to discriminate likely will use this case to argue that freedom of association also protects their right to choose whom to exclude.
In other areas, conservatives undoubtedly were greatly disappointed by the term. For decades, conservatives especially have targeted for overruling the Supreme Court's decisions disallowing school prayer, requiring Miranda warnings and protecting abortion rights. In each of these areas, the Rehnquist court followed precedent.
In Doe v. Santa Fe Independent School District, 2000 Daily Journal D.A.R. 6479 (June 17, 2000), the court declared unconstitutional a school policy permitting student-initiated, student-led prayers at football games. The school district, in Galveston County, Texas, provided for the election of a student chaplain and the delivery of an inspirational message by the student before football games. The student traditionally has delivered a prayer.
The Supreme Court, in a 6-3 decision, held that this violated the Establishment Clause. Stevens, writing for a majority that included O'Connor, Kennedy, Souter, Ginsburg and Breyer, stressed that the football game was a government event and that the government was instrumental in having the prayer occur.
The court expressly rejected the school district's claim that the students were simply exercising their right to freedom of speech. The court pointed out that the students were greatly limited in what they could say and that the school's choice to permit, and even encourage, prayer violated the Constitution. The court left open the issue of whether student-led prayer might be allowed if it is truly a student choice, such as at a graduation, with no school involvement.
In United States v. Dickerson, 2000 Daily Journal D.A.R. 6789 (June 26, 2000), the Supreme Court, by a 7-2 margin, reaffirmed Miranda. A federal statute enacted in 1968, 18 U.S.C. Section 3501, allowed for the introduction of voluntary confessions, even without proper administration of Miranda warnings. In Dickerson, the court declared this unconstitutional. Rehnquist wrote for the court, with only Scalia and Thomas dissenting.
The court held that Miranda is a "constitutional rule" based on the Fifth Amendment and that it cannot be overturned by statute. Furthermore, the court reaffirmed Miranda. Rehnquist's majority opinion is unambiguous: Proper administration of Miranda warnings is a constitutional requirement.
On the last day of the term, in Stenberg v. Carhart, 2000 Daily Journal D.A.R. 6977 (June 28, 2000), the court declared unconstitutional a state law prohibiting "partial birth abortions." In a 5-4 decision, with Breyer writing the majority opinion, joined by 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.
Nebraska, like 30 other states, prohibited the procedure called "partial birth abortion," 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. A federal district court found that the law would have the effect of preventing use of the safest forms of abortion during many stages of pregnancy before viability.
Based on these factual findings, the court invalidated the Nebraska law and stressed that protecting the health and safety of the woman is paramount before viability.
These, of course, are just a sample of cases from a term that features major rulings on everything from product liability to grandparents' rights, from government regulation of tobacco to nude dancing. The most important conclusion to draw from the year is that on most major issues the court is closely divided and whoever wins the presidential election and fills the next vacancies on the court is likely to determine the future of constitutional law for years to come.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California Law School.
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