The 2001 Supreme Court Term: A Preview Statement of Steven R. Shapiro, ACLU National Legal Director

September 26, 2001 12:00 am

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WASHINGTON–After a summer in which many had predicted at least one retirement, the Supreme Court returns this fall with its membership intact and a series of familiar issues on its docket, including affirmative action, the death penalty and speech on the Internet.

The Court’s decision yesterday to review the constitutionality of Cleveland’s school voucher program and the federal government’s zero tolerance program for public housing tenants assures that the Court will once again be immersed in some of the most vexing legal, social, and political controversies of the day.

That is certainly true of Cleveland’s voucher plan, which was struck down by the Sixth Circuit in three cases that have now been consolidated for review. Zelman v. Simmons-Harris (00-1751); Hanna Perkins School v. Simmons-Harris (00-1777); and Taylor v. Simmons-Harris (00-1779).

It had been widely agreed that the Supreme Court would take a voucher case sooner or later, and the Court has obviously decided that now is the time. Putting aside all the various intricacies of Establishment Clause law, the simple fact is that the Supreme Court has never approved such a massive program of public aid for religious instruction in its history, and could not do so now without dramatically reforming our modern understanding of the constitutional prohibition against government entanglement with religion.

The issue of affirmative action arises in Adarand Constructors, Inc. v. Mineta (00-730), where the Court will once again consider the constitutionality of a program intended to increase minority participation in federal highway construction. Six years ago, in Adarand I, the Court held that the affirmative action program then in effect was subject to strict constitutional scrutiny, rejecting the claim that programs designed to alleviate the effects of past discrimination should be judged more leniently than programs designed to maintain a practice of invidious discrimination.

Following the decision in Adarand I, the government rewrote its affirmative action rules and the modified program was then upheld by the Tenth Circuit. The fact that the Supreme Court has granted certiorari is, therefore, a troubling sign. Still, it seems unlikely that even this Supreme Court would question the government’s compelling interest in ensuring that federal tax dollars are not being used to underwrite an industry that has historically discriminated against racial minorities.

Likewise, while petitioner has raised questions about the sufficiency of the legislative factfinding in this case, the Court would have to go beyond even its recent skepticism toward federal civil rights legislation in order to dismiss the well-documented record of past discrimination that Congress has compiled over the years. And while it is always possible to nitpick any program in an effort to prove that it is not narrowly tailored, the far more serious issue is whether the current program has been so diluted in an effort to satisfy the Supreme Court that it is unlikely to achieve its goal of increased minority participation, even if sustained.

Whatever the outcome in Adarand II, the odds are high that either this year or in 2002 the Court will be asked to revisit the issue of affirmative action in university admissions. Last month the Eleventh Circuit struck down an affirmative action plan at the University of Georgia, and next month the Sixth Circuit will hear argument in a consolidated appeal from two district court decisions that reached opposite conclusions regarding the constitutionality of an affirmative action plan at the University of Michigan.

The legal framework for this debate has been defined since 1978 by Justice Powell’s pivotal opinion in Bakke, which recognized that public universities have a compelling interest in pursuing student diversity through affirmative action so long as the affirmative action plans they adopt do not impose a rigid racial quota. Given the conflicting lower court decisions, the Supreme Court will have to decide, sooner rather than later, whether Bakke remains good law.

The Court will have an opportunity, as well, to consider the highly charged issue of race and criminal justice when it reviews the ACLU’s pending petition for certiorari in Brown v. Oneonta (00-1728). The facts in Brown have received nationwide publicity. According to the complaint, the police ignored every element of a victim’s description of her assailant except for race, and then targeted the entire minority community in an upstate New York college town for investigation. The Second Circuit dismissed plaintiffs’ equal protection claim, which one judge described as “flawed and unworkable.” It is now up to the Supreme Court to resolve whether what allegedly occurred in Oneonta was appropriate police behavior or an unconstitutional instance of racial profiling — an issue that has become even more timely and important as the nation struggles to deal with the aftermath of the September 11th tragedy.

As usual, free speech issues figure prominently on the Court’s early docket. In Ashcroft v. ACLU (00-1293), the Court will address the question of Internet censorship for the second time in five years. Congress enacted the Child Online Protection Act (COPA) in 1998, ostensibly to correct the constitutional flaws in the Communications Decency Act (CDA), which was declared unconstitutional by the Supreme Court in Reno v. ACLU, 521 U.S. 844 (1997). In reality, the changes made in COPA do little to address the constitutional failings of the CDA. Among other things, both COPA and the CDA reduce adults to reading and seeing only what is deemed fit for children in a medium that the Supreme Court has already decreed should receive maximum First Amendment protection. Such a paternalistic scheme has not and should not survive serious constitutional scrutiny.

The statutory scheme struck down by the lower courts in Ashcroft v. Free Speech Coalition (00-795) represents another example of congressional overreaching. Despite its misleading title, the Child Pornography Protection Act of 1996 (CPPA) was not enacted to criminalize child pornography. Child pornography has been a federal crime for many years.

In drafting CPPA, Congress intentionally reached beyond the definition of traditional child pornography to prohibit any “visual depiction” that “appears to be” of a minor engaged in sexually explicit conduct, or that is advertised or promoted in a manner that “conveys th[at] impression.” On its face, the Act’s broad definition embraces numerous works of art. As the Ninth Circuit properly understood, child pornography laws are intended to shield children from actual sexual exploitation. When children are not involved, either because adults are used or because the image is a created one, the government’s interest diminishes substantially. Under those circumstances, the government may not use a rewritten child pornography law to stifle legitimate artistic representations of teenage sexuality. Seemingly recognizing as much, the government now argues that CPPA only reaches “virtual” computer images, but that assertion is simply irreconcilable with the operative language of the Act.

This Term also has the potential to be a watershed year for the death penalty. In Atkins v. Virginia (00-8452), the Court will have an opportunity to reverse its much-criticized decision in Penry v. Lynaugh, 492 U.S. 302 (1989), and finally hold that the execution of persons with mental retardation violates the Eighth Amendment, belatedly bringing the United States into line with the virtually unanimous view of the rest of the world. As yet a further indication of the emerging consensus against executing persons with mental retardation, the Court was obliged to dismiss as improvidently granted a previous order granting certiorari in McCarver v. North Carolina (00-8727), after the state passed a law prohibiting the practice.

The death penalty issue in Kelly v. South Carolina (00-9280) has less to do with reversing bad law than enforcing the Supreme Court’s existing procedural safeguards. In Simmons v. South Carolina, 512 U.S. 154 (1994), the Court ruled that a jury must be informed of its power under state law to sentence a defendant to life without parole if the prosecution is arguing in favor of the death penalty based on the defendant’s future dangerousness. The facts of Kelly unfortunately suggest that this due process rule has not always been followed.

The death penalty creates one set of distortions in the criminal justice system. In recent years, the public outcry over sex offenders has created a different set of pressures on the Court’s criminal jurisprudence. The problem is illustrated by two cases on this year’s docket. In Kansas v. Crane (00-957), the state is insisting on the right to civilly commit a sex offender who has completed his criminal sentence without any obligation to prove that the person it is seeking to place in a mental institution is either mentally ill or unable to control his impulses. In McKune v. Lile (00-1187), the state argues that it can penalize a prisoner who refuses to confess his past sexual offenses as part of a prison treatment program without any promise that the confession will not be used against him in future criminal proceedings.

The question of whether a private corporation operating a halfway house under contract with the federal government can be sued for money damages when it violates the constitutional rights of a prisoner in its care is before the Court in Correctional Services Corp. v. Malesko (00-860). It is a question that has assumed increasing significance with the growing reliance on privatized prisons. It is also a case that raises basic questions of equity under our federalist system since a state prisoner held in precisely the same circumstances would clearly be entitled to sue under existing law for any alleged constitutional violations.

Several other workplace-related cases bear watching, as well. Last year, in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), a decision that received less attention than it deserved, the Court held that employees could be required to arbitrate rather than litigate their federal civil rights claims. This year, in Equal Employment Opportunity Comm’n v. Waffle House, Inc. (99-1823), the Court must decide whether an employee’s arbitration agreement also bars the EEOC from seeking individual relief on the employee’s behalf. In Toyota Motor Manufacturing v. Williams (00-1089), the question is whether an employee who is unable to perform her assembly line job because of carpal tunnel syndrome, but may be able to perform certain other tasks, is disabled within the meaning of the ADA. And, in Mathias v. Worldcom Technologies, Inc. (00-878), a ratemaking dispute in the telecommunications industry has the potential to turn into another federalism battleground as the merits have been submerged in a threshold debate over the right to sue state officials in federal court under federal law.

The war on drugs is back before the Court in HUD v. Rucker (00-1770), where the Court will have to decide whether Congress actually intended to evict “innocent” tenants from public housing whenever someone in their household engages in drug-related activity, even if that activity occurs without their knowledge or consent. If the answer to that question is yes, the Court will then have to decide whether such a law is constitutional.

Finally, the issue of student drug testing is not yet before the Court but could reach it shortly in Board of Education v. Earls (01-332). In a case brought by the ACLU, the Tenth Circuit ruled that an Oklahoma school district could not require all students who participate in competitive extracurricular activities — including the choir, the band, the Future Farmers of America, and the school academic team — to submit to random and suspicionless drug testing. The school district has now filed a petition for certiorari seeking review of that decision.

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