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During the 2006-07 Supreme Court term, it was the 5-4 decisions that garnered the most attention. Twenty-four of the term's 72 cases were decided by this narrowest of margins--the highest percentage of 5-4 opinions in a decade--even as the share of unanimous opinions fell "below levels seen during most recent years under former Chief Justice William Rehnquist." (1)

Chief Justice John Roberts, who famously told the Atlantic Monthly that "it's bad, long-term, if people identify the rule of law with how individual justices vote," can't be overly pleased with the attention these numbers place on the Court's ideological divide in general, and on the votes of Justice Kennedy, in particular. (2) Yet, if not always helpful, such focus is surely understandable. For years, the Rehnquist Court had two "swing voters"--Justices O'Connor and Kennedy--ideologically poised between three comparatively conservative justices and four comparatively liberal justices. But after Rehnquist's death and O'Connor's retirement, the confirmations of John Roberts and Samuel Alito (we now know) have transformed the Court.

Now four outright conservative justices--Chief Justice Roberts and Justices Scalia, Thomas, and Alito--are frequently balanced against Justices Stevens, Souter, Ginsburg, and Breyer. In most of the high profile and controversial cases, that means there is only one swing voter left--Kennedy. As we review the past term, and consider the new one, which began October 1, we can see that, in general, this has made for a much more reliably conservative Court.

The Court and the Schools

Several cases last term considered the constitutional limits on school policies and actions. Parents Involved in Community Schools v. Seattle School District No. 1 (decided along with a similar case from Louisville, Kentucky) addressed the question of when a school district may take a student's race into account when deciding pupil school assignments. (3)

In Parents Involved, Seattle-area students going into high school were asked to register their preferences among any of the 10 high schools within the district. If a school was oversubscribed, students were admitted pursuant to four "tiebreakers," one of which was whether the numbers of "white" and "nonwhite" students in the school were "racially imbalanced" pursuant to a formula. The Seattle plan then allowed the school district to consider the race of individual applicants in order to redress such a racial imbalance.

On review, a 5-4 Supreme Court rejected the plan. Writing for himself and Justices Kennedy, Scalia, Thomas, and Alito, Chief Justice Roberts determined that the plan was neither necessary nor sufficiently tailored--and thus failed the "strict scrutiny" test that is applied to laws involving racial classifications.

"The school districts," he wrote, "have not carried their burden of showing that the ends they seek justify the particular extreme means they have chosen--classifying individual students on the basis of their race and discriminating among them on that basis." (4)

Justice Kennedy provided the fifth vote to strike down the assignment plans, but wrote separately because he was concerned that parts of the chief justice's opinion were "too dismissive of the legitimate interest government" has in ensuring equal opportunities for people of all races. According to Kennedy, Roberts's opinion "is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling" caused by segregated housing patterns. "To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken." (5) For Kennedy, the school districts' goals were not flawed; it was simply that the means they chose to reach those goals were too crude. (6)


The second major school case this term, Morse v. Frederick (better known as the "Bong Hits 4 Jesus Case"), pit high school principal Deborah Morse and her school board against high school senior Joseph Frederick and his free-speech claim. (7) This case arose when Morse suspended Frederick from school after he and some friends unfurled a large banner as the 2002 Olympic Torch and television crews passed by their Juneau, Alaska, school.

The sign read "Bong Hits 4 Jesus," which Morse contended advocated illegal drug use. Frederick claimed the phrase didn't mean anything in particular, but was something he'd seen written on a snowboard. Reversing the Ninth Circuit by a 6-3 vote, the Supreme Court ruled that because schools have a compelling interest in safeguarding students from speech that could reasonably be regarded as encouraging drug use, Frederick's suspension did not violate the First Amendment.

In a third school case last term, the Court ruled that the First Amendment did not prevent the Tennessee Secondary School Athletic Association (TSSAA) from enforcing restrictions on its member high schools' recruitment of middle school student athletes. Noting that TSSAA membership was voluntary, the Court ruled that the association has an interest in the efficiency and effectiveness of the league and that restrictions on certain recruiting-oriented speech serve this interest.

Justice Stevens wrote for the majority, stating, "We need no empirical data to credit TSSAA's common-sense conclusion that hard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams, and foster an environment in which athletics are prized more highly than academics." (8)

Global Warming

One of the biggest environmental law cases of the term may end up being more important for its wide effect on the global warming debate than for the more narrow statutory interpretation issue it actually resolved. (9) For this case, Justice Kennedy switched sides and voted with the four more liberal justices.

In Massachusetts v. EPA, the Court ruled 5-4 that Greenhouse Gases (GHG) qualify as an "air pollutant" under the Clean Air Act, and that therefore the Environmental Protection Agency (EPA) has the authority to regulate their emissions. And, according to the Court, the EPA should regulate unless it determines that such gases are not a contributing factor to climate change, or provides another explanation for not exercising this discretion, not based simply on policy judgments or uncertainty surrounding various aspects of climate change. (10)

One environmental law expert has described Massachusetts v. EPA as "the most memorable environmental decision since Hill v. TVA" (the case that decided, in 1976, that the Endangered Species Act could bar federal agency actions that jeopardized species). He noted that the decision will be widely viewed as having put the Court's "imprimatur" on the scientific linkage of Greenhouse Gas emissions to global warming, and that now "a spate of legislation addressing GHG emissions, global warming, and climate change seems certain to follow and is already beginning to appear at every level of government." (11)


Writing for another 5-4 majority in Gonzales v. Carhart, Justice Kennedy upheld the constitutionality of the Partial Birth Abortion Ban Act of 2003, which bars certain late-term abortion procedures known in the medical profession as "intact dilation and extraction." (12) The respondents in this case had argued that the law was unconstitutional on its face, in light of its failure to include an explicit exception for the health of the mother. But Justice Kennedy, noting that "respect for human life finds an ultimate expression in the bond of love the mother has for her child," reasoned that because of the government's interest in protecting potential life, Congress could decide to forgo a health exception in the face of medical disagreement over the impact of the intact D&E ban on women's health. (13) Justice Ginsburg--the only woman currently serving on the Court--issued a stinging dissent that she read orally from the bench.

Search and Seizure

The justices did speak with one voice in some cases, however. In Brendlin v. California, a unanimous Court held that, like the driver of a car that has been stopped by the police, the passengers in such a vehicle will also be considered "seized" for Fourth Amendment purposes. (14) Therefore, the Court ruled, passengers in stopped vehicles have the same right as the driver to challenge the constitutionality of the police stop and to seek the suppression of any evidence seized during the illegal stop.

Writing for the Court, Justice Souter explained that the test for telling when a "seizure" occurs is whether, in light of all the surrounding circumstances, a reasonable person would have believed he was not free to leave. He reasoned that the passenger in this case was seized within the meaning of the Fourth Amendment:
   An officer who orders one particular
   car to pull over acts with
   an implicit claim of right based on
   fault of some sort, and a sensible
   person would not expect a police
   officer to allow people to come
   and go freely from the physical
   focal point of an investigation into
   faulty behavior or wrongdoing.
   If the likely wrongdoing is not
   the driving, the passenger will
   reasonably feel subject to suspicion
   owing to close association;
   but even when the wrongdoing
   is only bad driving, the passenger
   will expect to be subject to some
   scrutiny, and his attempt to leave
   the scene would be so obviously
   likely to prompt an objection
   from the officer that no passenger
   would feel free to leave in the
   first place. (15)

Looking Ahead to the 2007-08 Term

A long and robust conversation between the three branches of government may finally have set the stage for the Court to determine what rights are actually possessed by the suspected terrorists and enemy combatants now held at the U.S. Navy base on Guantanamo Bay, Cuba.

What could be one of the new term's biggest cases has been a long time coming. In 2004, the Supreme Court rebuffed the Bush administration and held that the prisoners being detained as enemy combatants at Guantanamo are covered by the federal habeas corpus statute, and thus have the right to contest the legality of their incarcerations in federal court. (16) Subsequently, however, Congress passed the Detainee Treatment Act (DTA), which appeared to strip the Guantanamo detainees of such habeas rights. (17)

In 2006, the Court responded in Hamdan v. Rumsfeld by holding that the DTA actually did not strip federal courts of jurisdiction over any of the many habeas cases that were already pending at the time of the DTA'S enactment. (18) Seeing that the ball was back in its court, Congress then passed the Military Commissions Act (MCA), which denies detainees any habeas corpus rights whatsoever, regardless of whether their cases are already pending. (19) (Instead, the MCA says, detainees are entitled to special military trials.)

Last winter, the U.S. Court of Appeals for the District of Columbia Circuit upheld these habeas-stripping provisions and, in April 2007, the Supreme Court denied the detainees' petitions for certiorari. Two months later, however, the Court surprised nearly everyone by changing its mind and granting the detainees' petitions for certiorari, so as to decide once and for all whether federal courts have jurisdiction over petitions for writs of habeas corpus that are (1) filed by aliens who were (2) captured abroad and then (3) detained at Guantanamo Bay, Cuba. The Court consolidated two separate cases for argument on these issues: Boumediene v. Bush (involving seven detainees) and Al Odah v. United States (involving 56 detainees). (20) These consolidated cases were not immediately scheduled for argument, but are likely to be heard in either November or December.

When they are, and assuming the Court agrees with the government that Congress intended to deprive the courts of jurisdiction over the detainees' habeas petitions, the case will be decided on the basis of whether or not the MCA violates the Constitution's Suspension Clause, which states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (21)

Meanwhile, this 2007-08 term, the Court will hear arguments in Washington State Grange v. Washington State Republican Party, a case that questions the constitutionality of state laws that regulate the party identification that candidates can include on primary election ballots, and New York City Board of Education v. Tom F., a case that asks the Court to identify the circumstances in which parents are entitled to tuition reimbursement for their disabled child's education. (22)

Judging from the October argument calendar, sentencing issues in general, and the Federal Sentencing Guidelines in particular, will also remain a fertile ground for the Court, with one case, Kimbrough v. United States, of particular interest as it seeks to address the oft-noted disparity between the heavier sentences imposed for crimes involving crack cocaine as opposed to those involving powder cocaine. (23)

The 2006-07 Supreme Court term gave court watchers plenty to talk about--the role of Justice Kennedy, 5-4 decisions, Justice Ginsburg as the sole female voice, and lest we forget, Chief Justice Roberts's desire to unite the increasingly divided Court. This previous term proved to be one of great movement and change on the Court. And with numerous controversial and high profile cases on the docket for 2007-08, this new term will likely be even more important and interesting to watch.

The views expressed in this article are those of the author and have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association.


Supreme Court Preview

A website maintained by the ABA's publication Preview of United States Supreme Court Cases, offering merits and amicus briefs and questions presented for every case to be argued before the Court in the new term, along with expert analysis of the issues, arguments, and background of previous and upcoming cases.

Cornell University's Legal Information Institute Supreme Court Collection

A website with a searchable collection of Supreme Court opinions. Supreme Court of the United States Official Site

The official website of the Supreme Court, providing opinions, oral argument transcripts, biographical information about justices, and other material.


(1.) Thomas C. Goldstein, "End of Term Statistics and Analysis," Preview of United States Supreme Court Cases 426, No. 8 (August 2007).

(2.) Jeffrey Rosen, "Roberts's Rules," The Atlantic 106 (January/February 2007).

(3.) Parents Involved in Community Schools v. Seattle School District No. 1, Docket No. 05-908, decided with Meredith v. Jefferson County Board of Education, No. 05-915 (June 28, 2007).

(4.) Ibid., 34.

(5.) Ibid., 7-8 (opinion of Justice Kennedy, dissenting).

(6.) Vikram Amar, "The Court and the Schools in the 2006 Term," Preview of United States Supreme Court Cases 439, No. 8 (August 2007).

(7.) Morse v. Frederick, Docket No. 06-278 (June 25, 2007).

(8.) Tennessee Secondary School Athletic Assn. v. Brentwood Academy, 8, Docket No. 06-427 (June 21, 2007).

(9.) Robert Abrams, "Environmental Law in the New Supreme Court," Preview of United States Supreme Court Cases, 450, No. 8 (August 2007).

(10.) Massachusetts v. Environmental Protection Agency, Docket No. 05-1120 (April 2, 2007).

(11.) Abrams, 450.

(12.) Gonzales v. Carhart, 127 S.Ct. 1610 (2007).

(13.) Martha E Davis, "Women's Issues and the Roberts Court," Preview of United States Supreme Court Cases 433, No. 8 (August 2007).

(14.) In Brendlin u California, Docket No. 06-8120 (June 18, 2007).

(15.) Ibid., 7.

(16.) Rasul v. Bush, 542 U.S. 466 (2004).

(17.) Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2680 (2005).

(18.) Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).

(19.) Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006).

(20.) Boumediene et al. v. Bush et al., Docket No. 05-5062; Al Odah et al. v. United States et al., No. 05-5064.

(21.) U.S. Constitution. art. I, $ 9, cl. 2.

(22.) Washington State Grange v. Washington State Republican Party, Docket No. 06-713; New York City Board of Education v. Tom F., Docket No. 06-637.

(23.) Kimbrough v. United States, Docket No. 06-6330.

CHARLES F. WILLIAMS is associated director of the American Bar Association Division for Public Education in Chicago, Illinois.
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Title Annotation:Looking at the Law
Author:Williams, Charles F.
Publication:Social Education
Geographic Code:1USA
Date:Oct 1, 2007
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