U.S. Supreme Court Trends


Charles F. Williams

Among the most important decisions issued by the Supreme Court during its 1998-99 term were those that sought to clarify basic rights guaranteed by the Constitution and laws of the United States. In each of these cases, the Court felt the need to interpret our rights in order to answer the specific legal questions posed by the parties to a particular lawsuit. Among these questions are:

> Can the Secretary of Commerce take advantage of statistical “sampling” tools to combat the undercounting of minorities in the national census?

> Can the Immigration and Naturalization Service selectively target illegal aliens who belong to unpopular political groups?

> When can police search and seize persons or their property without a search warrant?

> Can schools be held liable for failing to stop “student-on-student” sexual harassment?

> Can states pay less welfare to their new residents than they pay to long-term residents?

The Court’s answers to these fundamental questions were important not only in terms of the cases decided; in becoming the law of the land, they have an impact far beyond the particular instances in which they first arose.

Note: The reference to “U.S.L.W.” below the title of each case directs you to the volume and page number where the Court’s full opinion can be found in the periodical United States Law Week. The full texts of the Court’s opinions are also available free of charge from the web site hosted by Cornell Law School at www.law.cornell.edu.


1998-99 Term Decisions

Sexual Harassment

Davis v. Monroe County Board of Education

67 U.S.L.W. 4329 (Jan. 12, 1999)

Can schools be held liable for failing to stop “student-on-student” sexual harassment? In the case of Davis v. Monroe County Board of Education, the Court said they can. Litigation spawned by a fifth-grader’s harassment of a female classmate reached the Supreme Court this term, and the result will affect local school districts across the nation.

Writing for a bare majority, Justice O’Connor held that schools found to be “deliberately indifferent” to a student’s sexual harassment of his or her classmates can be liable for money damages under Title IX. Enacted by Congress in 1972, Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” O’Connor concluded that the victim, LaShonda Davis of Forsyth, Georgia, might be able to show that the school board “subjected” her to discrimination by failing to respond to complaints about her classmate’s in-school misconduct, which included lewd remarks and repeated offensive touchings. Justices Stevens, Souter, Ginsburg, and Breyer joined O’Connor’s opinion, which also sought to discourage frivolous suits by stressing that “damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.”

Justice Kennedy dissented on federalism grounds. He agreed that Congress can attach conditions to its grants of federal funds in order to pursue objectives outside the legislative fields listed in Article I of the Constitution. But he argued that a state is entitled to receive “clear and unambiguous notice” of what those conditions are so that it can make an informed decision about whether to accept the funds. Otherwise, he said, there will be no check on the federal government’s ability to invade state jurisdiction. Here, he concluded, “there is no basis to think that Congress contemplated liability for a schoo#146;s failure to remedy discriminatory acts by students or that the States would believe the statute imposed on them a clear obligation to do so.” Justices Scalia and Thomas and Chief Justice Rehnquist joined Kennedy’s unusually sharp dissent, which objected that “the ruling makes the federal courts the final arbiters of school policy and of almost every disagreement between students.”


Street Gangs

Chicago v. Morales

67 U.S.L.W. 4415 (Dec. 9, 1998)

There is no serious debate over whether violent gang members who congregate on sidewalks and street corners intimidate law-abiding residents and harm the quality of urban life. There are, however, very serious constitutional questions about the sorts of measures local governments can take to combat the problem.

In Chicago, the city council responded to citizen complaints of gang intimidation by enacting an anti-loitering ordinance that authorized the police to arrest suspected “criminal street gang members” who refuse a police order to “disperse” and instead continue to loiter in the same location with other suspected gang members. The Chicago police used this new anti-gang weapon to make more than 40,000 arrests and order thousands of people to disperse. Some of these arrestees challenged the constitutionality of the ordinance that had led to their arrest.

In 1997, the Illinois Supreme Court agreed with these challengers, concluding that the Chicago ordinance was unconstitutionally vague and provided police officers with too much unguided discretion to decide for themselves when and where it applied. Voting 6-3 in Chicago v. Morales, the Supreme Court affirmed that judgment in an opinion written by Justice Stevens. The opinion endorsed the Illinois Supreme Court’s concern that the ordinance could too easily be applied to criminalize innocent behavior, and added that the law also violated the privileges or immunities clause, a seldom-invoked guarantee of the Fourteenth Amendment. As several prominent commentators have concluded, the Court’s opinion in this case may have breathed new life into the constitutional guarantee that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” and that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

Justices Scalia, Rehnquist, and Thomas dissented from the Court’s ruling, and Justice O’Connor wrote separately to stress that while she agreed that the present Chicago ordinance is unconstitutional, she also believed that a more narrowly-drawn ordinance that only targeted loiterers shown to have a harmful purpose might be upheld.


Search and Seizure

Minnesota v. Carter

67 U.S.L.W. 4017 (Oct. 6, 1998)

The Supreme Court surprised many Supreme Court watchers this term by agreeing to review and decide a whole series of cases interpreting the Fourth Amendment’s guarantee against unreasonable searches and seizures, and the requirement that police must ordinarily obtain a search warrant. In the first case, Minnesota v. Carter, the Court was asked whether the Fourth Amendment protects houseguests from unreasonable searches and seizures, and whether an officer who peeked through a gap in an apartment dweller’s window blinds was conducting a “search” within the meaning of the Fourth Amendment.

The answers seemed emblematic of the different views held by the justices on the scope of both the warrant requirement and privacy rights. Chief Justice Rehnquist concluded for the Court that the Fourth Amendment applies to overnight guests but not to short-term guests such as Carter and his co-defendants. In concurrence, Justice Scalia wrote that the amendment doesn’t apply to guests at all but only to a person’s own residence, while Justice Kennedy contended that it does cover houseguests but that these defendants weren’t houseguests. In dissent, Justice Ginsburg held that the Fourth Amendment not only applies to overnight guests but to short-term guests as well.

Florida v. White

67 U.S.L.W. 4311 (March 23, 1999)

In Florida v. White, the majority of the Court concluded that police don’t have to obtain a warrant before seizing an automobile from a public place if they have probable cause to believe the car is forfeitable “contraband.” The dissent objected that this means the exceptions have swallowed the warrant rule.


Wyoming v. Houghton

67 U.S.L.W. 4225 (Jan. 12, 1999)

In a similar vein, the majority in Wyoming v. Houghton ruled that once a driver’s conduct gave police probable cause to search his car, their warrantless search of a purse that his passenger had left on the seat was proper. The dissent feared that this would permit the warrantless search of a taxi passenger’s briefcase if there were probable cause to believe her driver had a syringe somewhere in the vehicle.


Knowles v. Iowa

67 U.S.L.W. 4027 (Nov. 3, 1998)

On the other hand, in Knowles v. Iowa, a unanimous Court struck down an Iowa law granting police the right to conduct a warrantless and full-blown “search incident to citation” whenever they stopped a motorist for a minor traffic offense. Yet to be determined: What if a state eliminated citations altogether and required custodial arrests for minor traffic offenses—could it then justify searching everyone alleged to have committed a minor crime?


Wilson v. Layne

67 U.S.L.W. 4322 (March 24, 1999)

Finally, in Wilson v. Layne, the justices agreed that media “ride-alongs,” in which police invite reporters and photographers to accompany them into a home during a search, usually violate the Fourth Amendment. It is unclear whether this decision would bar police ride-alongs by persons other than the media.



Saenz v. Roe

67 U.S.L.W. 4291 (Jan. 13, 1999)

The privileges or immunities clause was invoked once again as a divided Supreme Court held that a California statute that placed limits on the maximum welfare benefits available to new residents violated the “right to trave#148; protected by the clause. The issue in this case arose with the enactment of a 1992 California law that allowed only families who had lived in California for at least one year to receive maximum welfare benefits. Families who did not meet the one-year requirement could only receive benefits equal to the amount for which they would have qualified in the state of their prior residence. California had sought to defend the two-tiered nature of its new welfare law by arguing that it would save about $10.9 million in annual welfare costs without affecting a family’s right to travel.

Justice Stevens wrote for the Court that the “right to trave#148; embraces at least three different components: “It protects the right of a citizen of one state to enter and to leave another state, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state.” The issue in this case, he wrote, “is this third aspect of the right to travel, the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same state.” The state’s legitimate interest in saving money, he said, provides no justification for its decision to discriminate among equally eligible citizens.

In dissent, Chief Justice Rehnquist and Justice Thomas objected to the Court’s surprising use of the long-dormant privileges or immunities clause to strike down “a reasonable measure falling under the head of a ‘good-faith residency requirement.’” If states can require individuals to reside in-state for a year before exercising the right to receive in-state university tuition, or the right to terminate a marriage, or the right to vote in primary elections that all other state citizens enjoy, said Rehnquist, “then states may surely do the same for welfare benefits.”



Reno v. American-Arab Anti-Discrimination Committee

67 U.S.L.W. 4133 (Nov. 4, 1998)

When eight Los Angeles members of the Popular Front for the Liberation of Palestine were chosen for deportation proceedings on the grounds that they advocated “world communism,” they immediately objected that this selective enforcement of the immigration laws violated their First Amendment right of political association. Federal trial and appellate courts agreed, and barred the proceedings. But the Supreme Court reversed these courts on the grounds that the federal courts had lacked jurisdiction to review the aliens’ claims.

Writing for the Court, Justice Scalia ruled that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 only permits judicial review of aliens’ constitutional claims after the entry of a final order of deportation. Moreover, when—as in this case—an alien’s continuing presence in the country is in violation of the immigration laws, the government does not offend the Constitution by deporting this person for the “additional reason” that it believes him or her to be a member of an organization that supports terrorist activity.

Justice Souter dissented, disagreeing with Scalia’s interpretation of the 1996 Immigration Act, and further arguing that the Court had no business commenting at all about the constitutionality of selectively enforcing the immigration laws against members of unpopular political organizations. That, he said, was “an unbriefed issue that does not call for resolution even on the Court’s own logic.”


Immigration and Naturalization Service v. Aguirre

67 U.S.L.W. 4270 (March 3, 1999)

Juan Aguirre-Aguirre entered the United States illegally after fleeing his native Guatemala, where he had been a political activist. When caught and arrested, he sought asylum and withholding of deportation on the grounds that he would face persecution if forced to return to Guatemala. The immigration judge hearing his application agreed and granted asylum, but the Board of Immigration Appeals reversed this, noting that Aguirre had admitted to having forced passengers off at least 10 Guatemalan buses, then dousing the buses with gasoline and setting them afire. These criminal acts against innocent Guatemalans, the Board ruled, outweighed their “political nature” (Aguirre had argued that he burned the buses to protest both the mysterious disappearance of some of his fellow activists and the government’s decision to raise student fares).

The Ninth Circuit then reversed the Board of Immigration Appeals, saying that it had erred in declaring Aguirre ineligible for asylum and withholding of deportation without first considering the “political necessity and success of Aguirre’s methods,” whether his acts were grossly out of proportion to their objective or were atrocious, and what persecution he might suffer upon return to Guatemala. The Supreme Court issued a final reversal. In a unanimous decision written by Justice Kennedy, the Court noted that the question before it was whether the Ninth Circuit could require the Board to consider additional factors beyond a basic inquiry as to whether the criminal nature of Aquirre’s Guatemalan offenses outweighed their political aspects. The Court held that it could not: the Board’s determination that there were “serious reasons” for considering that Aguirre had committed a “serious nonpolitical crime” outside the United States before he arrived here, rendering him ineligible for withholding of deportation, was entitled to judicial deference.



Department of Commerce v. U.S. House of Representatives

67 U.S.L.W. 4090 (Nov. 30, 1998)

The Constitution’s census clause authorizes Congress to direct an “actual Enumeration” of the American public every 10 years, in order to determine the number of people living in each state and thus how many representatives each state can send to Congress. The problem confronting the Secretary of Commerce, who is charged by the Census Act with conducting the census, is that studies have shown that even the most careful census headcounts miss a significant number of people. Because undercounted groups tend to be minorities and others who traditionally vote Democrat, the “undercount” issue is politically charged.

In Department of Commerce v. U.S. House of Representatives, the House of Representatives brought suit to block the Secretary of Commerce’s plan to remedy the undercount through the use of several statistical “sampling” techniques designed to estimate and then include persons who fail to turn in their census forms. The GOP-controlled House objected, arguing that the Census Act authorizes the Secretary to conduct an actual headcount only. By a bare majority, the Supreme Court agreed.

Writing for the conservative wing of the Court, Justice O’Connor said that while Congress has not barred the Secretary from using statistical sampling for the purpose of gathering demographic information (such as race, sex, housing and unemployment) through the census, Congress has made clear that it does not permit the use of sampling for the purpose of determining the population count used for congressional apportionment. Those numbers, Justice O’Connor said for the Court, must be derived through traditional enumeration methods. The dissenters, including Justices Stevens, Souter, Ginsburg, and Breyer, argued that the Census Act in fact does permit the Secretary to use sampling techniques, because those methods would make the census more accurate and in turn make for a more accurate apportionment of representatives among the states.


On the Docket for 1999-2000


Mitchell, Guy, et al. v. Helms, Mary L., et al.

Docket No. 98-1648

1999 is already shaping up to be a lively term for the First Amendment. The Supreme Court will address an important issue that has been an ongoing source of controversy: Does the establishment clause of the First Amendment prevent the government from lending schools apparently secular materials, such as computers, on an equal per-student basis regardless of a schoo#146;s religious or secular character? The Fifth Circuit held that it does, and struck down a portion of a federal program authorizing such federal aid on the grounds that it would provide religious schools with the kind of governmental support that impermissibly advances religion.

The Fifth Circuit emphasized that its decree prohibits the government from funding any program that could result in religious schools being lent “such items as filmstrip projectors, overhead projectors, television sets, motion picture projectors, video cassette recorders, video camcorders, computers, printers, phonographs, slide projectors, etc.” In addition, it said, “Our decree also necessarily prohibits the furnishing of library books by the State, even from prescreened lists. We can see no way to distinguish library books from the ‘periodicals ... maps, charts, sound recordings, films, or any other printed and published materials of a similar nature’ that the government is already prohibited from providing sectarian schools.”


Student Activity Fees

Board of Regents, University of Wisconsin v. Southworth

Docket No. 98-1189

Like all other students at the University of Wisconsin, Scott Southworth is required to pay a mandatory “student activity fee” of $165.75 each semester. Some of this money goes to the University’s student government organization, which in turn distributes funds to an array of student groups, some of which engage in political speech to which Southworth objects. The Seventh Circuit agreed with Southworth that the First Amendment protects him from such “compelled speech,” and that, as in the case of union members who can withhold the portion of their dues that support political speech, Southworth can withhold the portion of his activity fees that goes to pay for political speech with which he disagrees. The University now urges the Supreme Court to reverse the Seventh Circuit on the grounds that the mandatory fees do not constitute “compelled speech” but, rather, simply fund a “limited public forum” that in turn furthers the university’s mission of encouraging students to engage in the expression of ideas of interest to them.

Charles F. Williams is editor of the American Bar Association’s Preview of United States Supreme Court Cases.

Teaching Activities and Discussion Questions

Hannah Leiterman

1. Subject for Debate: Make a list of some of the most important topics the Court has chosen to hear cases about in the most recent term. A good place to find this information is the Legal Information Institute’s Supreme Court Collection at supct.law.cornell.edu/supct/99highlts.htm. What important social and political issues were unfolding between September 1998 and June 1999? Do you think the Court responds to what is happening in society, or actively influences it? Look at previous terms to support your argument.

2. Look at the topics you listed in Activity 1, and compare them to the cases decided in your state supreme court during the same period of time. You can find this information on the web at www.findlaw.com/11stategov/index.html (information is not available for every state). What does this suggest about the different roles of state versus federal courts? Who is the Chief Justice of your state supreme court? What do you know about him or her?

3. Read the article “The Justices Decide Who’s in Charge,” on the web at www.nytimes.com/learning/general/featured_articles/990628Amonday.html. Do students agree that the Supreme Court’s decisions overturning laws passed by other governmental bodies (Congress and state and local governments) are within the Court’s power as part of the constitutional system of checks and balances? Once such laws are overturned, does Congress have any power to pass new legislation in response? What about the states?

4. Figure 1 shows the increase in the number of cases filed at the Supreme Court by decade intervals in the twentieth century. In which years do you begin to notice a dramatic increase? Why might the numbers have risen so sharply? Consider such factors as:

> general population growth and growth of crime

> major civil rights legislation

> the Court’s establishment of right to counsel for indigent defendants in criminal cases

> the spread of television and other communications media, and increased general awareness of rights and entitlements

> the growing influence of interest groups.

5. Figure 2 shows how often the members of the Court agreed on cases, as well as the voting margins by which they disagreed, during the 1998-99 term. What were some of the most divisive issues the Court faced during this term (those in which the vote was 5-4)? This information is available on the web at upct.law.cornell.edu:8080/supct/. Choose one of these cases and research both the background of the law and the history of the case itself. Why was the Court so divided on this issue?

6. Work in small groups to research and report orally on the background of the current nine justices on the Court. Your report should include such factors as: their prior experiences, the age at which they were appointed and the length of their tenure on the Court, and the president who appointed them. Based on this information, which justices seem likely to retire in the near future, and why? (See the box “Justices and Retirement.”)

7. Look at the immigration cases and the article about them on the web at www.abanet.org/publiced/focus/immcongress.html. What is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996? What does the class consider a “serious” crime? A “political “ crime? Discuss whether you think immigrants should be deported for past political crimes or membership in groups that may support terrorist activities.


For more learning activities about immigration, see “The Changing Face of Immigration Law: Teaching Activities,” in the November/December 1998 edition of Social Education, p. 466. Or visit the teaching activities section of the ABA Division for Public Education website, “Immigration: A Dialogue on Policy, Law, and Values,” at www.abanet.org/publiced/focus/immresources.html.



Atkinson, David N. Leaving the Bench: Supreme Court Justices at the End. Lawrence, Kans.: The University Press of Kansas, 1999.

A history of how and why each justice has left the Supreme Court, and an examination of the question of when justices should leave.

Baum, Lawrence. The Supreme Court, 6th Ed. Washington, D.C.: Congressional Quarterly Inc., 1998.

Examines the Supreme Court as a political institution and the basic operation of the Court, and explains its behavior as well as that of the people and institutions that influence it.


Bowers, James R. and Stephen Daniels. Hypotheticals: Supreme Court Decision Making and Constitutional Interpretation. New York: Longman, 1998.

A supplementary text containing 28 hypothetical Supreme Court cases, along with sets of questions that can be used as homework assignments and exam questions, or to stimulate class discussion.


Cooper, Philip. Battles on the Bench: Conflict Inside the Supreme Court. Lawrence, KS: University Press of Kansas, 1995.

A compelling historical discussion of ideological and personal conflicts among the justices, from John Marshall to Ruth Bader Ginsberg, that analyzes the nature and importance of diasgreement and dissent on the Court.


Epstein, Lee, Jeffrey A. Segal, and Harold J. Spaeth, et al. The Supreme Court Compendium: Data, Decisions, and Developments. Washington, D.C.: Congressional Quarterly, Inc., 1994.

A comprehensive reference book on the Supreme Court caseload, decisions, justices, and voting patterns.


Hall, Kermit L., et al. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1994.

An invaluable reference guide to more than 400 leading Supreme Court cases, all of the justices who have served, and the major social issues that have come before the Court.


Irons, Peter H. A People’s History of the Supreme Court. New York: Viking Press, 1999.

An impressive and readable history of the Supreme Court that places the Court’s most significant decisions in a broad political and cultural context.


Hannah Leiterman is a program assistant in the Division for Public Education of the American Bar Association.


Justices and Retirement

Supreme Court justices, like all federal judges, are appointed to the bench for lifetime tenure “during good behavior,” so as to ensure the highest possible degree of judicial independence from partisan politics, popular opinion, and the government’s perspective. As a consequence, many justices stay on the Court well past the age when most Americans normally retire. In recent years, this has included Justices William Brennan, Thurgood Marshall, and Harry Blackmun.

What motivates a justice to retire or to stay on the Court? Have past justices served beyond their physical or mental capacities? Might the Court’s recent reduction in the number of signed opinions be related to the ages of current justices? Alternatively, does the broad and lengthy experience of the justices (most are not appointed to the Supreme Court until the age of 55 or even 60) offer special advantages to the Court’s moral authority and decision-making efficacy?

Policy questions abound. Should there be a mandatory retirement age for Supreme Court justices, as some observers have recommended? Should Presidents be allowed to appoint additional justices, if justices beyond a particular age (e.g., 75) choose not to retire? This is what President Franklin Roosevelt unsuccessfully urged in his “court-packing” plan of the 1930s. Has Congress provided adequate salary, senior status opportunities, and retirement benefits for the justices?

For a discussion of these issues in historical perspective, see David Atkinson’s recent book, Leaving the Bench: Supreme Court Justices at the End.

©1999 National Council for the Social Studies. All rights reserved.