Supreme Court Trends

A Supreme Court term traditionally starts on the first Monday in October and ends when the court opens for its next term. The 1997 Supreme Court term began on October 6 and will end October 5, 1998. Each term is designated by the year in which it begins. The last day in June is usually the unofficial end of each term.

Under Chief Justice William Rehnquist, the Supreme Court hears substantially fewer cases than under Chief Justices Earl Warren (1953-69) and Warren Burger (1969-86), with the past courts averaging about 140 opinions per term. However, in 1996, the court reversed this trend somewhat, with the plenary review docket growing to full review of 84 cases, compared to 77 for 1995. Eighty of these cases were decided by signed opinion, three were dismissed, and one was returned to the lower courts for reconsideration.

The task of writing the court's signed opinions continued to be relatively evenly divided among the justices, with Chief Justice Rehnquist authoring the most at 11 decisions, and other justices averaging 8-10 each.

While the court continued to issue a substantial number of unanimous opinions (about 33 percent of the total), most of these were "lawyerlike" cases with little interest outside the profession. But the justices' ideological differences surfaced in several high-profile cases of interest to educators.

Supreme Court Signed Opinions, 1996 Term
Unanimous Decisions
(only where court denotes entire opinion as unanimous) 26
Majority of 88
Majority of 78
Majority of 610
Majority of 5 19
Shifting Majorities Within Single Opinion6
Plurality Opinions
(fewer than 5 justices agree on legal basis for court's action)3
L. Anita Richardson

Four Decisions,1996
Agostini v. Felton 65 U.S.L.W 4524 (U.S. June 23, 1997), a 5-4 decision, is expected to send Title 1 teachers into private, sectarian schools around the country in an effort to reduce high costs. Illustrating the tension between the court's moderate and conservative blocs, this case overruled two of its own 1985 decisions, concluding that the establishment clause is not violated when public school teachers provide federally funded secular educational services to sectarian school students in their schools during normal school hours. The court explained that Title 1 instruction is secular and religion-neutral and that the New York City Title 1 teachers involved are trained and supervised to ensure that only secular instruction is given.

Kansas v. Hendricks; Hendricks v. Kansas 65 U.S.L.W. 4564 (U.S. June 23, 1997). The court, in a 5-4 decision, rejected the challenges of a self-confessed, lifelong pedophile by upholding civil statutes intended to keep violent sex offenders out of circulation after they have finished serving sentences. At issue was the backward reach of the Kansas statute, which the state was applying to an individual who had been convicted of child molestation in 1985, some 10 years before the statute went into effect. Under the statute, violent sex offenders can be kept confined indefinitely in a mental health facility. The court ruled the statute contained stringent safeguards to ensure that it is applied to just a narrow category of offenders, and only for so long as each offender confined remained at risk of committing violent sex offenses if released. The statute did not constitute punishment but instead provided a reasonable means of protecting the public against offenders who would likely pose a danger if released.

City of Boerne, Texas v. Flores 65 U.S.L.W. 4612 (U.S. June 25, 1997). At issue in the city of Boerne, Texas, was the First Amendment standard to be applied to so-called neutral laws of general application, like zoning laws, which are not motivated by hostility to religion and which apply to all persons without regard to individual religious views, when such laws are challenged as violating the First Amendment's free exercise clause. In a 6-3 vote, the court sounded the death knell for the Religious Freedom Restoration Act (RFRA), holding that Congress had gone too far in enacting the statute, and had overreacted to the few cases in which general laws disrupted a person's or a group's religious practices. Archbishop Flores of San Antonio wanted to expand an existing church in Boerne, but the city refused to issue a permit to tear down the existing building, maintaining that it was a historic building in a historic district. The city stated that a bigger church could be built, but that the historic features of the current church would have to be retained, which would have made the expansion very expensive. Archbishop Flores opposed the city's position, claiming that it violated the RFRA. In striking down the statute, the court said that only it, and not Congress, decides the proper test to apply in determining the constitutionality of general laws that are alleged to burden the free exercise of religion.

Reno v. American Civil Liberties Union 65 U.S.L.W. 4715 (U.S. June 26, 1997), decided by a 7-justice majority, was the Supreme Court's first Internet case and a big winner for Internet access providers, for those who post information on the Internet, and for foes of government regulation of speech. At issue was the First Amendment constitutionality of the Communications Decency Act, which Congress had passed to protect children from sexually explicit material on the Internet. There was only one problem: the definition of sexually explicit material could vary from locale to locale and even be vague within the same area. In striking down the act, the court noted that the Internet is entitled to the highest level of First Amendment protection, extending to the Internet the same high degree of constitutional protection that it had already extended to the press and to so-called pure speech such as the public square and soapbox oration.

Cases to Watch, 1997
Piscataway Township Board of Education v. Taxman, 91 F.3d 1547 (3d 1996), will be watched closely by employees, government officials, and public policy organizations on both sides of the affirmative action debate, as the Supreme Court's decision in the case might end non-remedial affirmative action policies and programs under Title VII and, quite likely, under the equal protection clause as well. The case involves a 1989 layoff decision by a public school district, where the board of education directed the superintendent to reduce the business education faculty by one. Seniority rules identified two teachers as layoff eligible, both hired the same day nine years earlier and regarded by administrators as equally qualified, with their only difference being race.
Sharon Taxman is white and Debra Williams is African American. Taxman was laid off on the basis of a school board policy under which minorities (defined by race, national origin, and gender) would be favored in employment decisions involving equally qualified individuals. Simply put, racial discrimination in employment under Title VII must be remedial; if not, it's unlawful. Now it's up to the Supreme Court to determine if the lower court's understanding of Title VII was correct when it rejected the district's reliance on diversity as a justification for the discriminatory layoff.

United States v. Scheffer, 44 M.J. 442 (1996), asks the Supreme Court to take a fresh look at polygraph evidence, which the Supreme Court declared inadmissible in federal and most state courts in the 1920s. The decision will be closely watched because it will not be limited to military cases. Scheffer, being court-martialed on drug charges, wanted to introduce polygraph evidence to counter a positive drug test that the prosecutor had introduced, even though a rule of military evidence prohibits the use of polygraph test results and even any reference to polygraph tests. The military's highest court held that Scheffer's Sixth Amendment right to a fair trial requires for him to be allowed to introduce the polygraph test results. Now the Supreme Court will have to respond to Scheffer's argument that polygraph tests are much more reliable than they once were. The government will counter that juries may be tempted to view such tests as irrefutable evidence, disregard conflicting evidence, and be unduly harsh toward defendants who do not take the tests or decline to introduce their results for whatever reasons.

Oncale v. Sundowner Offshore Services, Inc., 83 F.3d 118 (5th Cir. 1996), poses a straightforward but thorny question under Title VII: Does the statute's prohibition against sexual harassment apply when the harassment is between members of the same sex? If sexual harassment is seen as a form of gender discrimination, then even if same-sex harassment is a form of assault and therefore illegal, it may not be actionable under Title VII. If the plaintiff, Oncale, a heterosexual male, should win, the next kind of case likely to be litigated is whether sexual harassment based on sexual orientation or preference is covered by Title VII's sexual-harassment prohibition. The Supreme Court could preempt that result by holding that sexual harassment is actionable under Title VII only if it occurs between members of the opposite sex, but that would penalize heterosexual employees who have been sexually harassed by a same-sex superior. Given the competing interests involved, this case is being closely watched by employers, employees, and advocacy groups, as well as the plaintiff's and defense bars. n

For more information about these and other Supreme Court cases that will be of interest to classrooms, as well as materials to help you teach about them, contact the ABA Division for Public Education, 541 N. Fairbanks Court, Suite 1500, Chicago, IL 60611-3314; Voice: 312-988-5737; FAX: 312-988-6032; e-mail:; World Wide Web: http/

L. Anita Richardson is the editor of the American Bar Association's Preview of the United States Supreme Court Cases and adjunct professor at The John Marshall Law School in Chicago and Loyola University of Chicago.