1996 Court Term Review & Summary

June 26, 1997 12:00 am

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WASHINGTON — The United States Supreme Court ended its 1996 Term today after a hectic final week that once again confirmed the Court’s central role in American political life. In a series of landmark decisions, the Court struck down congressional efforts to censor the Internet, preserve religious freedom, and regulate gun sales.

“After several years of feeling its way, the Court’s personality is now clearly emerging,” said Steven R. Shapiro, the ACLU’s National Legal Director. “This is a Court that generally supports free speech. It also believes in state’s rights. And, it is more skeptical of federal authority than any Court in recent history.”

“It is, in addition, a Court that believes in neutrality more than it believes in equality. This is particularly true in race cases,” Shapiro added.

The Court’s commitment to free speech was most vividly illustrated by its decision in Reno v. ACLU, a case in which the ACLU served as both counsel and lead plaintiff. In a strongly worded opinion, the Court struck down the Communications Decency Act adopted by Congress in 1996 as part of a misguided effort to censor the Internet.

The majority opinion by Justice Stevens clearly recognized the enormous potential of the Internet as a new medium of communication. As Justice Stevens described, the Internet allows “any person with a phone line [to] become a town crier with a voice that resonates further than it could from any soapbox.”

The Court also recognized the danger of allowing government to criminalize speech based on vague notions of “indecency.” There is simply no way, as Justice Stevens noted, that a speaker could “confidently assume that a serious discussion about birth control practices, homosexuality . . . or the consequences of prison rape would not violate the CDA.”

Finally, the Court emphatically rejected the government’s claim that it was necessary to censor the Internet in order to save it. “The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefits of censorship,” Justice Stevens wrote.

Unfortunately, the Court showed much less sensitivity to constitutional values when it turned from speech to religion. Indeed, one of the great ironies of this Term is that a Court that views itself as sympathetic to religion managed to undermine both Religion Clauses of the First Amendment within a single week.

In Agostini v. Felton, the Court reversed its own prior understanding of the Establishment Clause and held that public school teachers could provide remedial education in parochial schools. Writing for the Court, Justice O’Connor emphasized that the case did not involve religious indoctrination or the transfer of any funds to parochial schools. Efforts to see this case as a step toward vouchers are thus overstated. Nevertheless, the Court has never before upheld such a massive subsidy program to parochial schools.

Only two days later, in City of Boerne v. Flores, the Court struck down the Religious Freedom Restoration Act of 1993, which was enacted by Congress to provide statutory protection for religious rights that the Court had left unprotected by its 1990 decision in Employment Division v. Smith. The Court concluded that Congress had exceeded its authority to enforce the Constitution under section 5 of the Fourteenth Amendment. As a result, government laws that burden religion are no longer subject to any special scrutiny so long as they do not single out religion for disfavored treatment.

The Court’s increasingly limited view of the scope of federal authority — especially when it conflicts with the Court’s expanded view of state sovereignty — was highlighted by its decision in Printz v. United States. In a remarkable discourse on federalism, the Court struck down a provision of the Brady Handgun Violence Prevention Act because it enlisted state officials in enforcing federal law.

By contrast, the Court adopted a far more deferential approach to state regulation in its two “right to die” decisions. In Washington v. Glucksburg, the Court ruled that the due process clause does not protect the right of terminally ill patients to determine the manner and timing of their own death. In Vacco v. Quill, the Court found no trouble distinguishing between the recognized right of terminally ill patients to refuse life sustaining treatment and their unrecognized right to doctor-assisted suicide.

The “right to die” decisions reflect, in part, the Court’s discomfort with substantive due process. Likewise, in Kansas v. Hendricks, the Court saw no due process problem with a state law that permitted the indefinite confinement of a sexual offender in a mental hospital — after the completion of his criminal sentence — based on a vague finding of “mental abnormality” and a prediction of future dangerousness.

More generally, this is a Court that remains hostile to defendant’s rights. There were, however, some notable exceptions this Term. For example, in Young v. Harper, an ACLU case, the Court unanimously ruled that a prisoner released by Oklahoma officials under a “pre-parole” program designed to relieve overcrowding could not be summoned back to prison on four hours notice without a hearing.

In Lindh v. Murphy, the Court refused to give retroactive effect to some of the most onerous provisions of the new habeas corpus law.

In Richards v. Wisconsin, the Court resisted the impulse to create a new drug exception to the Fourth Amendment when it ruled that the police executing a search warrant cannot simply ignore the requirement to “knock and announce” their presence in all drug cases.

It has been rare in recent years for the Court to rule against the government in a drug-related case. This Term, the Court did it twice. In Chandler v. Georgia, the Court struck down a drug testing program for the first time when it held that Georgia could not require a broad array of state officials to submit to a drug test as a condition of appearing on the ballot. As Justice O’Connor pointedly noted: “The candidate drug test Georgia has devised diminishes personal privacy for a symbol’s sake. The Fourth Amendment shields society against that state action.”

The Court’s record on voting rights was far less encouraging. The Court did rule in Young v. Fordice, a case in which the ACLU served as co-counsel, that Mississippi could not frustrate the federal Motor Voter Law by unilaterally imposing a dual registration requirement without preclearance by the Justice Department.

However, the year’s most important voting rights decision was Abrams v. Johnson, another ACLU case. There, the Court upheld a judicial plan that left Georgia with only one majority-minority congressional district out of eleven. In the process, the Court further narrowed the scope of the Voting Rights Act.

The Court also whittled away at the Voting Rights Act in Reno v. Bossier Parish, when it held that the Department of Justice could not, in most cases, take minority vote dilution into account in deciding whether to preclear a redistricting plan under section 5 of the Voting Rights Act. In other words, the Department of Justice can be forced to preclear a redistricting plan that it considers unlawful.

The Court showed a greater appreciation for the practical consequences of its rulings in M.L.B. v. S.L.J., the fifth ACLU case argued this Term. In an opinion written by Justice Ginsburg, the Court held that a mother’s automatic appeal under state law from a trial court decision terminating her parental rights cannot be denied simply because she is unable to afford more than $2300 in costs for the preparation of a trial transcript.

Finally, the Court decided two important immunity cases. In Richardson v. McKnight, the Court held that private prison guards accused of violating the constitutional rights of inmates in their care cannot claim the same qualified immunity as state prison guards. More prominently, in Clinton v. Jones, the Court ruled that a sitting president who is sued for damages based on conduct that allegedly occurred outside the scope of his official duties is not entitled to an automatic stay of all proceedings during his term in office.

“It has been year of last minute, high profile decisions,” Shapiro said. “The Internet case was our greatest victory. The religion cases were our greatest setback.”

“We are now ready for the summer recess,” he concluded.

Founded in 1920, the ACLU is a national, non-partisan organization committed to defending the Bill of Rights through litigation, legislation and pubic education. With the exception of the Justice Department, the ACLU is involved in more cases before the Supreme Court than any other individual or organization.

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