ACLU Supreme Court Preview 1998 Term: An Overview

October 1, 1998
Statement of Steven R. Shapiro
ACLU Legal Director

The Supreme Court has already granted review in more than half of the cases it is likely to hear during the upcoming Term. Although the Court is never able to escape controversy entirely, for the second year in a row its docket is not loaded with headline-generating cases. That, in itself, is an interesting commentary on the Supreme Court's role in our constitutional system given the political turmoil now swirling around the other branches of government. There are, nonetheless, several cases on the docket that could lead to important rulings with long-term consequences for civil rights and civil liberties. In addition, there are a number of pending petitions for certiorari that raise substantial constitutional questions; some of those petitions are almost certain to be granted in the next several months. As always, therefore, the complexion of the Supreme Court year can look very different at the end than at the beginning.

The ACLU is direct counsel in three cases at the moment. All three demonstrate both the temptation and risk of sacrificing constitutional principle for political expediency. Chicago v. Morales, 97-1121, involves a challenge to an anti-gang ordinance enacted by the City of Chicago. Until it was struck down by the Illinois courts, more than 45,000 people were arrested under the ordinance during a three-year period, not for engaging in violent or threatening behavior, but for loitering on the street corner with "no apparent purpose" and failing to move on when so ordered by the police. The Supreme Court has long recognized the constitutional perils of such vague loitering ordinances. It is thus especially disappointing that the Clinton Administration chose to file a brief in support of Chicago's law.

The second ACLU case is Reno v. American-Arab Anti-Discrimination Committee, 97-1252. It began almost a decade ago as a constitutional challenge to the government's decision to begin deportation proceedings against eight California residents because of their lawful political advocacy on behalf of Palestinian causes. Every federal judge to review the evidence, including nearly 11,000 pages of government files, has concluded that the plaintiffs have shown a likelihood of proving that the government's actions violated the First Amendment. Despite that finding, or perhaps because of it, the government is now arguing that the 1996 amendments to the immigration law deprived the federal courts in this case of any jurisdiction to hear plaintiffs' constitutional claims. While the government insists that it is not disputing plaintiffs' right to judicial review, only when and where it happens, both lower courts correctly recognized that the inescapable consequence of the government's position would be to deny plaintiffs any meaningful review at all.

The third ACLU case already accepted for review is Anderson v. Roe, 98-97, where the Ninth Circuit struck down a California law intentionally designed to limit migration into the state by restricting the welfare benefits of new state residents to the level available in their prior state. Thus, for example, while the standard monthly grant for a family of four in California is $673, a family of four that has moved from Mississippi to California within the last year would receive only $144 per month - regardless of whether the family could survive on that amount in California, which has one of the highest costs of living in the United States. This issue is hardly a new one for the Court. In 1941, the Court held in a landmark decision that California could not shut its borders to indigent farmers fleeing the ravages of the "dust bowl." This latest legislation reflects similar motives, albeit in the guise of modern "welfare reform." It is not surprising, therefore, that every lower court to address the issue has recognized that such state statutes are incompatible with the very notion of a federal union, and thus an unconstitutional abridgement of the right to interstate travel.

In other cases of note, the Supreme Court will also hear argument this Term in Davis v. Monroe County Board of Education, 97-843, to resolve the question of whether Title IX prohibits student-to- student harassment, and in Hunt v. Cromartie, 98-85, to resolve one more time the constitutionality of North Carolina's congressional redistricting.

On a related subject, the issue of how the census should be conducted is before the Supreme Court again in Department of Commerce v. United States House of Representatives, 98-404. Two years ago, the Court ruled that the City of New York could not compel the Census Bureau to compensate for the historical undercount of minority groups by utilizing statistical sampling techniques. This time, the question is whether the Census Bureau can be barred from using statistical corrections when its experts have concluded that they offer the best chance of obtaining an accurate count of the national population. The ACLU is planning to file an amicus brief arguing that the use of statistical sampling is fully consistent with the relevant statutes, which must be read in light of our constitutional commitment to equal political participation, as embodied in both the Civil War Amendments and the doctrine of one person - one vote.

There has been less talk so far about Wright v. Universal Maritime Service Corp., 97-889, but it too could have a significant impact on civil rights enforcement. The precise issue is whether an employer can use the mandatory arbitration clause in a collective bargaining agreement to prevent an employee from suing in federal court over an alleged violation of the civil rights laws. The broader question, which the Court may or may not reach, is the extent to which employers can impose arbitration agreements as a condition of employment and thereby undermine the judicial remedies that Congress has created. In an amicus brief filed with the Court, the ACLU has argued that such arbitration agreements must be analyzed in terms of traditional waiver principles, and cannot be upheld unless they are knowing and voluntary.

Even in a "quiet" year, these cases demonstrate what's at stake when government tries to take away basic freedoms -- from standing on the street corner, to supporting controversial political causes, to moving with your family to another state, to claiming the protection of important civil rights laws, to literally being counted as a member of society.

Furthermore, some of the most interesting cases on the Court's docket are still awaiting decision on a petition for certiorari, including the following ACLU cases:

In Jackson v. Benson, 98-376, we are challenging the constitutionality of Wisconsin's school voucher program. Reversing two lower courts, the Wisconsin Supreme Court held that the state's multimillion dollar program does not offend the Establishment Clause, even though it authorizes payment to parochial schools that can, in many instances, exceed their actual tuition costs. Thus far, no other school voucher program of this magnitude has ever survived judicial scrutiny.

In Legal Aid Society of Hawaii v. Legal Services Corp., 98-296, we are asking the Court to reverse a Ninth Circuit decision upholding recent congressional restrictions on the activities of legal services lawyers. Among other things, the restrictions prohibit legal services programs that receive any federal funding from using even private dollars to challenge the constitutionality of welfare "reform" legislation. Other restrictions bar legal services lawyers from bringing class actions, as well as engaging in administrative or legislative advocacy. In short, a program that was created to provide legal representation to indigent clients in civil cases has now been turned into a program where those same clients will often be forced to choose between no representation at all and the representation of a lawyer with one hand tied behind her back.

In Todd v. Rush County, 97-2021, we are seeking review of a Seventh Circuit decision upholding a mandatory drug testing policy applied to all students who participate in any extracurricular activities, including the chess team and debating club. Relying solely on the proposition that participation in extracurricular activities is voluntary, the decision goes far beyond the Supreme Court's opinion upholding drug testing for student athletes, and strips high school students of any meaningful protection against unconstitutional searches.

In Wilson v. Layne, 98-83, we are arguing that the Fourth Amendment does not permit the police to expand the terms of a search warrant by inviting the press to accompany them into a private home while they execute the warrant. The invasion of privacy is magnified, moreover, when the press photograph or video the encounter for later publication. The practice, which is becoming increasingly common around the country, has also spawned an increasing amount of litigation. However, in contrast to cases like Cable News Network. Inc. v. Berger, 97-1914, the plaintiffs in this case sued only the police, not the press.

Finally, in Torres v. Massachusetts Dep't of Corrections, 98-xxx, we have filed a petition for certiorari in an Eighth Amendment case challenging the conditions of confinement in the state's "supermax" prison. The issue before the Supreme Court is not whether the Eighth Amendment has been violated, but how that determination should be made. The lower courts in this case ruled that expert testimony documenting the psychological impact of confinement in such institutions is irrelevant to resolving the constitutional question. Our position is just the opposite: that the constitutional question cannot be resolved without a factual context that gives it meaning.

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