BRIA 8 1 a The New Supreme Court: Decisions to Come

Bill of Rights in Action
Fall/Winter 1991 (8:1)

Trends and Issues of the Bill of Rights

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The New Supreme Court: Decisions to Come

The Supreme Court brought about a revolution in the law during the 1950s and 1960s. Decisions by justices in this era ended legal racial segregation and expanded the rights of individuals including minorities, women, and defendants in criminal trials. During the 1970s an 1980s, Republican presidents gradually replaced justices from this era as they retired. Today, the high court led by Chief Justice William Rehnquist is largely made up of justices with a different judicial philosophy and view of the law. While it is difficult to generalize, the current justices are less likely to interpret the Constitution to expand individual rights. Instead, they are more likely to find the acts of government, either the executive or legislative branch, to he constitutional.

This article reviews important Supreme Court precedents in four areas: prayers in public schools, abortion, the exclusionary rule, and affirmative action. All of these constitutional areas are ripe for reconsideration by the new justices. Following a discussion of precedents in each area, a general constitutional question is then presented to form the basis for a moot Supreme Court hearing to be conducted by the class.

The Establishment Clause and Prayers in Public Schools

The First and 14th amendments prohibit Congress and the states from passing any law "respecting an establishment of religion." The Supreme Court's first important interpretation of this establishment clause took place in 1947. Writing for the majority, Justice Hugo Black used Thomas Jefferson's argument for a "wall of separation between church and state" as the basis for his interpretation of the establishment clause. "Neither a state nor the federal government can set up a church," he wrote. "Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. . . ." (Everson v. Board of Education , 330 U.S. 1, 1947)

Starting in the 1960s, the Supreme Court ruled that prayers and other religious exercises in the public schools violated the establishment clause of the First Amendment. The Supreme Court held in 1962 that a voluntary "non-sectarian" school prayer, written by state officials in New York, was unconstitutional. (Engle v. Vitale, 370 U.S. 421, 1962) The following year, the high court similarly ruled that the voluntary recitation of the Lord's Prayer and readings from the Bible in Pennsylvania's public schools violated the establishment clause. (Abington Township School District v. Schempp, 374 U.S. 203, 1963)

In 1985, Justice Rehnquist wrote a dissenting opinion in the case of Wallace v. Jaffree [472 U.S. 38], which struck down an Alabama law requiring one minute of silence before school to allow "meditation or voluntary prayer." In that dissent, he challenged the rationale for the court's previous school prayer cases. Justice Rehnquist argued that the framers of the First Amendment only intended the establishment clause to prohibit the government from establishing a national religion or preferring one religion over another. He also reasoned that the court had been in error in adopting Jefferson's rigid "wall of separation between church and state" idea as a basis for making decisions about the establishment clause. Based on these arguments, Justice Rehnquist concluded that the establishment clause does not automatically prohibit prayers in public-school classrooms.

The court demonstrated that it was not persuaded by Rehnquist's views in the 1992 case of Lee v. Weisman [505 U.S. 577]. In a 5-4 decision, the court ruled that the establishment clause forbids clergy from offering prayers as part of a public school graduation ceremony. Justice Anthony M. Kennedy delivered the opinion of the court, writing that "the government involvement with religious activity in this case is pervasive, to the point of creating a state sponsored and state directed religious exercise in a public school." In such a case, Kennedy continued, "the controlling precedents . . . compel the holding here that the policy [of allowing clergy to offer prayers at public school graduations] is an unconstitutional one."

Justice Rehnquist joined in Justice Antonin Scalia's dissent, which argued that non-sectarian benedictions safeguard against religious bigotry. Scalia concluded that "to deprive our society of that important [safeguard], in order to spare the nonbeliever what seems to me the minimal inconvenience of standing or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law."

In 2000, the Supreme Court decided the case of Santa Fe Independent School District v. Doe in the spirit of Lee v. Weisman. In Santa Fe v. Doe, the court ruled that permitting student-led and -initiated prayer at public school football games violates the establishment clause. Delivering the opinion of the Court, Justice John Paul Stevens wrote that the school district's policy is constitutionally invalid because it "unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events."

In a dissenting opinion, Justice Rehnquist wrote that "the Court distorts existing precedent to conclude that the school district's student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court's opinion; it bristles with hostility to all things religious in public life."

While the court has ruled fairly consistently that prayer in public schools is a violation of the Establishment Clause, the precise limits of this injunction are yet to be fixed.

Constitutional Question #1

Do graduation prayers and other religious exercises in the public schools violate the establishment clause of the First Amendment?

The Right to Privacy and Abortion

A 7-2 majority of the Supreme Court in 1973 held unconstitutional a Texas law that prohibited all abortions except those necessary to save the life of the mother. (Roe v. Wade, 410 U.S. 438, 1973). This decision struck down many state laws forbidding abortion and set off a storm of controversy throughout the nation that continues to this day.

The Supreme Court in the Roe case based its ruling on a woman's right to privacy. Although the Constitution nowhere specifically mentions such a right, the court found it implied in the First, Third, Fourth, and Ninth amendments and in the due-process clause of the 14th Amendment. (Griswold v. Connecticut, 381 U.S. 479, 1965). The court ruled that this right of privacy protected a woman's right to abortion. Justice Harry A. Blackmun, writing for the majority, found that states did have an interest in the unborn fetus and could legally prohibit an abortion, but only after the fetus was "viable" (i.e., capable of life outside the womb—about 24 weeks after conception). Before that time, a pregnant woman has the right to have an abortion.

The Supreme Court's decision was quickly attacked on legal grounds. Some questioned the existence of a privacy right in the Constitution. According to this view, since none of the amendments specifically mention privacy, the court overstepped its bounds by implying such a right. Some who agreed that a right to privacy exists questioned whether it should protect the right to abortion. It was also argued that the Supreme Court justices had substituted their own views about abortion for the views of the elected representatives of the people.

For a while, the Supreme Court decided cases that expanded the Roe V. Wade decision. In 1976, a 6-3 court majority held that a state may not require a married woman to get her husband's consent before obtaining an abortion. (Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 1976) But by the end of the decade, the high court began to make exceptions to the Roe v. Wade ruling. In 1979, the court agreed that states, under certain conditions, may require an unmarried, pregnant minor to get parental consent before having an abortion. (Bellotti v. Baird, 443 U.S. 622, 1979)

So far, the most far-reaching Supreme Court decision restricting Roe v. Wade was a ruling in 1989 that opened the door to states to write stricter laws regulating abortion. (Webster v. Reproductive Health Services, 109 S.Ct. 3040, 1989) In a 5-4 decision, the court majority upheld a Missouri law banning all tax-supported health-care facilities from providing abortions not needed to save the life of the mother.

During the 1990s, the Supreme Court continued to decide cases that created exceptions to Roe v. Wade. In the 1990 case of Hodgson v. Minnesota [497 U.S. 417], the Supreme Court upheld a Minnesota law requiring a minor to wait 48-hours after the notification of her parents before receiving an abortion, unless the minor is a victim of parental abuse or neglect. The Supreme Court also upheld an Ohio statute requiring physicians to notify at least one parent of an unmarried, unemancipated minor receiving an abortion [Ohio v. Akron Center, 497 U.S. 502, 1990]. In the 1991 case of Rust v. Sullivan [500 U.S. 173], the court upheld a federal law prohibiting the allocation of federal funds to programs providing abortion counseling or abortion as "a method of family planning."

One of the most recent case the court has decided about abortion and the right to privacy is the 2000 case of Stenberg v. Carhart. In this case, the court examined a Nebraska statute that renders partial birth abortion a felony. The statute defines partial birth abortion as a procedure in which a doctor "partially delivers vaginally a living unborn child before killing the . . . child." The Supreme Court ruled that "Nebraska's statute criminalizing the performance of partial birth abortion[s] violates the Federal Constitution." It is too soon to tell whether this case will be the first of a new wave of cases expanding the Roe v. Wade decision.

Constitutional Question #2

Does the Constitution guarantee a right to privacy? If so, does the right protect a woman's right to abortion?

Due Process of Law and the Exclusionary Rule

The exclusionary rule is actually a set of court-developed rules barring from criminal trials all evidence illegally seized by the police. The exclusionary rule serves as a mechanism to keep police from violating rights guaranteed by the amendments to the Constitution. These rights include the Fourth Amendment search and seizure requirements, the Fifth Amendment's protection against self-incrimination, and the Sixth Amendment's right to counsel.

In 1918, the Supreme Court applied the exclusionary rule to all federal criminal cases. (Weeks v. U.S., 232 U.S. 383, 1914) In 1961, the high court ruled that the exclusionary rule extended to state courts where most of the nation's criminal cases are tried. (Mapp v. Ohio, 367 U.S. 643, 1961) This ruling was criticized by many who objected that reliable evidence would no longer be admissible in trials when a defendant could show that his or her constitutional rights had been violated. As a result, guilty persons would sometimes go free. In addition, it was argued that by imposing these restrictions on law enforcement and prosecutors they would be hampered in efforts to combat crime.

Over time, the Supreme Court has carved out exceptions to the exclusionary rule. Under these exceptions, evidence may be admitted into court under certain conditions even though the constitutional rights of defendants have been breached. One of these exceptions has to do with "impeachment" of a defendant's testimony. In this situation, the prosecutor may not use illegally obtained physical evidence or statements in presenting the primary case. But the prosecutor may introduce this evidence to show that the defendant's own court testimony is untruthful. (Harris v. New York , 401 U.S. 222, 1971, and Michigan v. Harvey, 110 S.Ct. 1176, 1990). The 1990 case of James v. Illinois, however, the justices decided 5-4 that illegally obtained evidence may be used in court to impeach testimony of the defendant only. It may not be used to impeach the testimony of other witnesses. [110 S.Ct 648]

The Supreme Court frequently has been guided by the principle that the purpose of the exclusionary rule is to deter authorities from illegally obtaining evidence by removing the incentive of using such evidence for prosecution. In the 1995 case of Arizona v. Evans [514 U.S. 1], the court ruled that the exclusionary rule does not require the suppression of evidence seized in violation of the Fourth Amendment if the evidence was seized in accordance with erroneous information resulting from clerical errors of court employees.

It remains to be seen what the justices of the Supreme Court will ultimately decide about the exclusionary rule. It may be that they will continue to tinker with it, finding a new exception in one case, sustaining it in another. Debates about the exclusionary rule are likely to remain on of the court's most hotly debated issues.

Constitutional Question #3

Should all statements made by defendants to police illegally obtained or not be admitted into evidence?

Equality and Affirmative Action

"Affirmative action" refers to a wide variety of measures to aid certain groups, such as African-Americans, Latinos, and women. The purpose of affirmative action is to enable these groups to overcome the harmful effects of past and present discrimination.

The first significant Supreme Court decision in this area took place in 1978 when a white graduate student challenged the affirmative-action program of the University of California at Davis medical school. The Davis medical school had reserved a quota of 16 out of 100 places in its entering class for minority applicants. Allan Bakke, a white applicant, was refused admission to the school even though his entrance test scores were higher than some minority applicants who were accepted. Justice Lewis Powell, writing for a 5-4 majority, ruled that Bakke had been discriminated against in violation of the equal-protection clause of the 14th Amendment (Regents of the University of California v. Bakke, 438 U.S. 265, 1978).

The following year the Supreme Court reached a surprisingly different conclusion in the case of an affirmative-action job-training program jointly developed by the Kaiser Steel Company and the steelworker's union. Before the affirmative-action program, less than 2 percent of the 273 skilled craft workers at the Kaiser plant in Gramercy, Louisiana, were black, even though blacks made up 39 percent of the area's labor force. Under training-program rules, workers were to be selected based on seniority. But at least 50 percent of the trainees had to he black. Brian Weber, a white Kaiser steelworker, charged that he was the victim of "reverse discrimination" when he was denied entrance into the program, because some black workers with less seniority were selected into the program He claimed this violated the Civil Rights Act of 1964.

Congress passed this act at the height of the civil-rights movement to eliminate racial discrimination against blacks in employment and other areas. Weber, however, pointed to language in the act prohibiting employers and unions from discriminating "against any individual because of his race." [Section 703(d)]

Justice William Brennan, writing the majority opinion of the Supreme Court, conceded that the literal wording of the Civil Rights Act supported Weber's claim. But Brennan argued that the act had to be interpreted in the light of the original purpose of Congress, which was to reduce serious black unemployment brought on by years of racial discrimination. Brennan also maintained that the Civil Rights Act did not specifically forbid private employers from voluntarily using racial preferences to overcome past discrimination. Dissenting in this decision, Justice (now Chief Justice) Rehnquist declared that the Kaiser program required racial quotas, as it the Bakke case, and was in violation of the 1964 Civil Rights Act (United Steelworkers of America v. Weber, 443 U.S. 193, 1979).

In 1980, the Supreme Court upheld a federal law requiring 10 percent of federal funds to state and local governments for public construction projects to be "set aside" for contracts with minority-owned businesses. Chief Justice Warren Burger, for the majority, argued that equal protection of the law was not violated since Congress intended to remedy past discrimination against minority-owned businesses. In his dissent, however, Justice Potter Stewart stated that the Constitution demands strict "color blindness" in dealing with all citizens. (Fullilove v. Klutznick, 449 U.S. 448, 1980).

In 1989, the Supreme Court decided a series of cases on affirmative action. Among other things, these decisions concluded that minorities and women had to prove that intentional and specific discrimination had occurred before relying on preferential programs. (See City of Richmond v. J. A. Croson Co., 109 S.Ct. 706, 1989).

In 1990, the Supreme Court reviewed two affirmative action policies adopted by the Federal Communications Commission (FCC) in Metro Broadcasting, Inc. v. Federal Communications Commission [497 U.S. 547]. The first policy requires the FCC to weigh minority ownership and participation in management as a positive factor when considering applications for licenses for new radio or television broadcast stations. The "distress sale" policy, the FCC's second affirmative action policy, allows a broadcaster on the verge of losing his or her license to transfer that license to a minority enterprise before the FCC resolves the matter in a hearing. The FCC adopted these policies in accordance with the objective of the Communications Act of 1934 to promote broadcast diversity. The court ruled 5-4 that the FCC policies do not violate equal protection. Justice Brennan delivered the opinion of the court, writing that the FCC affirmative action policies "bear the imprimatur of longstanding congressional support and direction and are substantially related to the achievement of the important governmental objective of broadcast diversity." In a dissenting opinion, Jusice Kennedy expressed "regret that after a century of judicial opinions we interpret the Constitution to do no more than move us from 'separate but equal' to 'unequal but benign.'"

In the 1995 case of Adarand Constructors v. Pena [515 U.S. 200], the court ruled 5-4 that all race-based affirmative action programs and policies must be analyzed on a case-by-case basis by a reviewing court under strict scrutiny. Furthermore, the court held that all federal racial classifications must narrowly tailored to serve a "compelling governmental interest." Adarand replaced the less rigorous standards of scrutiny put forth in Fullilove and Metro Broadcasting with a standard of strict scrutiny. The Supreme Court will surely revisit this constitutional controversy in the near future.

Constitutional Question #4

Do affirmative action programs that give preferential treatment to minorities and women violate the equal-protection clause of the 14th Amendment and the Civil Rights Act of 1964?


New Decisions to Come: a Moot Court

  1. Divide the class into five groups: one for each of the four constitutional questions presented in the article plus one additional group that will play the part of the U.S. Supreme Court.

  2. Students in each of the first four groups will take on the role of attorneys arguing a constitutional question before the Supreme Court. The students in these groups should first decide among themselves who will take the affirmative and who will take the negative side of the question. Students should then prepare arguments that they will present orally to the moot court They should carefully read the information in the article on the precedents dealing with their question. Time should also be given for the students to research additional information on their constitutional question. Use library resources and Internet search engines such as FindLaw. Supreme Court decisions may be found in law libraries located in courthouses and universities and online.

  3. The group of students role playing the members of the Supreme Court needs to become familiar with the precedents for all four constitutional questions. These students should prepare their own questions to ask each side of each constitutional question.

  4. Attorneys should be given equal time to present their oral arguments to the moot court. Moot court members may interrupt attorneys to ask them questions at any time during their presentation. After arguments have been concluded on each constitutional question, the moot court members will meet to discuss and vote on it. They will then announce their decision. Each member should give reasons for his or her vote.



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