U.S. Supreme Court Trends


Charles F. Williams

The 73 cases decided by the Supreme Court during the 1999-2000 term included more headline-grabbing decisions than any term in recent memory. Yet, as the following selections suggest, the sum total of the Court’s work—especially in the perennially contested areas occupied by criminal law and the First Amendment—defied easy labeling as representing large “conservative” or “libera#148; trends.

True, the Justices’ familiar ideological positioning generally remained in place this term, with Justices Breyer, Ginsburg, Souter and Stevens often occupying the Court’s left wing, and Chief Justice Rehnquist and Justices Scalia and Thomas typically anchoring the right. But it was Justices O’Connor and Kennedy, the crucial swing votes in the center, who made the difference in a remarkable 20 cases decided by narrow 5-4 margins—a fact not lost upon any of the political parties in this presidential election year.


Criminal Law

Miranda Upheld:
Dickerson v. United States (No. 99-5525)

The Case: Dickerson, or “The Miranda case” as it became known among Court watchers, turned on the question of whether the Court had announced a rule of constitutional law when it decided in 1966 that a suspect must be warned that he “has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda v. Arizona, 384 U.S. 436 (1966).

By a 7-2 vote, the Court decided it had.

While, thanks primarily to TV cop shows, much of the public has assumed these warnings are required by the Constitution,1 the Court has actually wrestled with the question for some time, sometimes leaning one way, sometimes another. Finally, the Fourth Circuit Court of Appeals brought the issue to a head when it ruled that a suspect’s confession could be admitted into evidence against him even though he had not been read his Miranda rights.

The Fourth Circuit noted that shortly after Miranda was decided, Congress passed a law, known as Section 3501, which purported to overrule Miranda. It said that, contrary to Miranda, any confession should be admissible in evidence so long as it is voluntarily given. While the Justice Department never made any use of this law, it remained on the books, untested. Then, in this case, the Fourth Circuit concluded that it was good law. It concluded that giving suspects Miranda warnings was one way of ensuring that any confession they gave would be voluntary, but that Congress had the power to say that these warnings were not mandatory, and that confessions could be admitted into evidence without complying with Miranda. All the prosecution needed to do, the Fourth Circuit held, was to demonstrate that, under the “totality of the circumstances,” the suspect’s confession was voluntary.

The Decision: On review in the Supreme Court, the Justices generally saw two alternatives. They could rule that the Miranda warnings were in the nature of rules of evidence that Congress could supersede. Or they could rule that the warnings were constitutionally required by the Fifth Amendment guarantee that no person “shall be compelled in any criminal case to be a witness against himself.”

Writing for the Court, Chief Justice Rehnquist concluded that Miranda did announce a constitutional rule—and therefore that Congress could not supersede it legislatively. Of course, even though Congress lacked the power to overrule Miranda, the Court itself could still do so. Rehnquist, however, said the Court would “decline” this suggestion. At this point in our nation’s history, he said, Miranda has “become embedded in routine police practice to the point where the warnings have become part of our national culture.”

Therefore, although he would not necessarily agree with Miranda’s reasoning “were we addressing the issue in the first instance,” the Chief Justice said that principles of stare decisis (respect for precedent) “weigh heavily against overruling it now.”


Stop and Frisk Power Expanded:
Illinois v. Wardlow (No. 98-1036)

The Case: While the Fourth Amendment provides that police cannot conduct a full-fledged search of a suspect without “probable cause” to believe he is engaged in unlawful activity, the Supreme Court determined in a 1968 case, Terry v. Ohio, 392 U.S. 1, that they may “stop and frisk” a suspect based on less evidence—a reasonable “suspicion” that the person has committed, or is about to commit, a crime. Numerous cases since then have tackled the question of what sorts of behavior or circumstances can provide the police with the necessary “reasonable” suspicion they need in order to stop and frisk. The circumstances in this case: Sam Wardlow was standing on the sidewalk in an area of Chicago known for drug dealing when four police cars arrived. Upon spotting the police, Wardlow took off at a run. The police gave chase, eventually stopped and frisked him, and found a loaded .38 caliber handgun. When he was charged with violating various gun laws, Wardlow argued that the police had no right to stop and frisk him.

On appeal, the Illinois Supreme Court agreed and threw out his conviction, saying that under the Fourth Amendment, merely running away from the police does not give the police the right to stop and frisk you.

The Decision: The United States Supreme Court agreed that mere flight is not enough to create “reasonable suspicion,” but voted 5-4 that when the flight is “unprovoked” and can be shown to have taken place in a “high crime area,” it does justify a stop and frisk—a so-called Terry Stop. It therefore reversed the Illinois courts and ordered Wardlow’s conviction to be reinstated, observing in Chief Justice Rehnquist’s words that “Headlong flight—wherever it occurs—is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”

Watch for subsequent stop and frisk cases to hinge upon whether a given area is or is not in a “high crime area.”


First Amendment

Football Prayers Barred:
Santa Fe Independent School District v. Doe (No. 99-62) (June 19, 2000)

The Case: Schools in the Santa Fe Independent School District in Texas have had a long tradition of beginning football games with a prayer. Facing court challenges to that tradition, the district established the following policy:

Students could determine by secret ballot if they wanted a pregame student speaker at their football games.

If they decided they wanted one, they then had to decide, by a second secret ballot, who that student speaker would be.

The speaker who was chosen by the second secret ballot would then decide what message and/or invocation to give. The student could say anything s/he wanted, so long as it was consistent with promoting good sportsmanship.

The school would not pre-approve the content of the student’s remarks.

The Decision: The question for the Supreme Court was: Did this policy permitting “student-led and student-initiated” prayer violate the First Amendment? The court voted 6-3 that it did, saying that prayers delivered before high-school games are not private speech, and that the games are not a public forum at which students have an unbridled right to free expression.

The distinction between “public” (i.e., government-sponsored speech) and “private” speech was crucial to the majority’s analysis because, as the Court made clear in 1990, in a case called Board of Education v. Mergens, 496 U.S. 226 (1990), both the Free Speech and Free Exercise Clauses in the First Amendment protect private speech endorsing religion.

“There is a crucial distinction,” the Court said in Mergens, “between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech Clause and Free Exercise Clauses protect.”


Gay Scoutmaster Dismissed:
Boy Scouts v. Dale (No. 99-699) (June 28, 2000)

The Case: This highly controversial case began when the Boy Scouts refused to appoint a gay young man named James Dale to the position of assistant scoutmaster. Dale sued the Scouts under the New Jersey Law Against Discrimination, which forbids discrimination in public accommodations on the basis of race, creed, color, national origin, ancestry, marital status, sex, affectional or sexual orientation, or nationality.

The New Jersey Supreme Court ruled that the Scouts’ refusal to appoint a gay person to this position violated the New Jersey Law Against Discrimination, and it ordered them to give Dale the leadership position, which the Scouts did not want to do.

The Scouts frankly conceded that the only reason they opposed the appointment was that Dale had publicly described, in newspaper interviews, how he had become active in the gay rights movement and why he believed there was a need for more role models for gay and lesbian teenagers. They acknowledged that Dale had been an outstanding Scout; that he was in fact an Eagle Scout who had won numerous other Scouting awards before going away to college. But they argued that when deciding whom to appoint to leadership positions, they had a First Amendment right—a freedom of association—to decline to appoint openly gay people if making such appointments would run counter to their moral beliefs and organizational principles. And they argued that homosexual conduct is in fact inconsistent with the Scout Oath to be “morally straight” and contrary to the Scout Law, which requires Scouts to be “clean” in word and deed.

The Scouts maintained that freedom to associate—and not associate—with others is an unwritten constitutional right, a necessary corollary to their First Amendment right to peaceably assemble, petition the government, and exercise free speech and religion. They argued that the case should be decided in the same way the Court had decided Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, a 1995 case in which the Court ruled that the Boston’s St. Patrick Day parade had the right to exclude a gay rights contingent because the participation of that group would have interfered with the parade organizers’ right to propound one view (respect for St. Patrick and allegiance to the teachings of the Roman Catholic Church) and not to propound a different view (of support for gay rights).

Dale and his supporters, on the other hand, argued that the case should be decided along the lines of gender discrimination cases such as Roberts v. United States Jaycees, 468 U.S. 609, a 1984 case in which the Court held that the Jaycees did not have a First Amendment right to exclude women.

The Decision: By a narrow 5-4 vote, the Court held that the Scouts’ First Amendment right to freedom of association was strong enough to act as a shield against the New Jersey discrimination law, with five of the justices finding that Dale’s case more closely resembled the St. Patrick’s Day case than it did the Jaycees case.


Computers in Religious Schools:
Mitchell v. Helms (No. 98-1648) (June 28, 2000)

The Case: Mitchell v. Helms considered whether Chapter 2 of the 1965 Elementary and Secondary Education Act was unconstitutional because it authorizes the government to lend computers, software, and library books to students who are enrolled in religious as well as public schools. The law works by channeling federal grants for special services and equipment through public school districts, with the requirement that the items acquired with the money must be shared equally, on a “secular, neutral and nonideologica#148; basis, with students attending any accredited public or private (including religious) schools within the district’s boundaries.

What Congress had in mind when it passed this law in 1965 was equipment like overhead and reel-to-reel film projectors. But recently, a major goal of the program has been to make computers available to as many students as possible.

For years, the question of whether this sort of aid violates the establishment clause when it makes it way into religious schools has been addressed by the so-called “Lemon test,” named after Lemon v. Kurtzman, 403 U.S. 602 (1971), the case in which it was announced.2 This test provides that, to withstand an Establishment Clause challenge, a government policy must be shown:

These are called the three prongs of the Lemon test.

Critics have long complained that the Lemon test has led to absurd results, with the Court in a case called Board of Education v. Allen, 392 U.S. 236 (1968), saying it was okay for the government to give parochial schools textbooks, but saying in two other cases—Meek v. Pittenger, 421 U.S. 349 (1975), and Wolman v. Walker, 433 U.S. 229 (1977)—that it could not provide them with other materials, such as world maps—a circumstance that led Senator Daniel Patrick Moynihan to wonder what the court would do with an atlas. See Cong. Rec. 25661 (1978).

The Decision: Writing for the Supreme Court, Justice Thomas agreed with the critics, saying that while the first two prongs of the Lemon test still needed to be answered affirmatively in these sorts of cases, under Agostini v. Felton, 521 U.S. 203 (1997), a post-Lemon case, Lemon’s third prong—the excessive entanglement inquiry—was now just one of the criteria relevant to determining a statute’s “principal effect.” Now, Justice Thomas explained, courts should ask the following questions in school aid cases:

a. result in governmental indoctrination?

b. define its recipients by reference to religion?

c. create an excessive entanglement between government and religion?

In this case, he said, no one was challenging the lower courts’ conclusions that the statute had a secular purpose and that it did not create an excessive entanglement. Therefore, he overruled Meek and Wolman and concluded that because Chapter 2 “neither results in religious indoctrination by the government nor defines its recipients by reference to religion,” the law is not a “law respecting an establishment of religion” and should be upheld.


Grandparent Visitation

Parental Rights Upheld:
Troxel v. Granville (No. 99-138)

The Case: Most people would agree with the sentiment that grandparents have much love to offer their grandchildren, but the awkward question presented to the Court in this case was, What if a child’s parents don’t want the grandparents to spend as much time with the grandchildren as the grandparents want to spend? Can the state order these parents to make their grandchildren available for additional visitation time with the grandparents?

A Washington state law permits “any person” to petition a court for visitation rights “at any time,” and authorizes that court to grant such visitation rights whenever “visitation may serve the best interest of the child.”

The Troxels successfully petitioned under this law for the right to visit their deceased son’s daughters. The granddaughters’ mother objected. She didn’t oppose all visitation, but she thought the two weekends a month sought by the grandparents was too much.

The Decision: While the Washington supreme court declared the visitation law flatly unconstitutional, the United States Supreme Court was more cautious—and conflicted. It ended up agreeing that the visitation order was improper, but only on the grounds that the Washington statute was unconstitutional “as applied” in this particular case. Thus, it declined to say that the law could not be applied in a constitutional manner in some future case.

“We do not, and need not, define today the precise scope of the parental due process right in the visitation context,” Justice O’Connor wrote. “Because much state court adjudication in this
context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter.”

Acknowledging that “the demographic changes of the past century make it difficult to speak of an average American family,” she reasoned that “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”

Only three justices agreed with O’Connor’s opinion. As a result, there was no “majority” opinion in this case. But in addition to the “plurality” of four Justices who embraced Justice O’Connor’s reasoning, Justice Souter and Justice Thomas (once again defying expectations by breaking ranks with Justice Scalia) filed concurring opinions that at least agreed with the result—that the visitation order granted the Troxels must be struck down.

Meanwhile, Justice O’Connor’s plurality opinion does offer some guidance to the lower courts striving to apply such visitation statutes in a constitutional manner:


In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.

Justices Stevens, Scalia, and Kennedy filed separate dissents.


More Close Cases of Note


Stenberg v. Carhart (No. 99-830)

A bitterly divided Court struck down a Nebraska law that would have made it a crime to perform the late-term abortion procedure described as “partial birth abortion” unless necessary to save the mother’s life. The Court voted 5-4 that the Nebraska law (and similar laws in 30 other states) violated the Constitution because in some situations a physician could determine that the controversial procedure is the most medically appropriate way to terminate a late-stage pregnancy.



United States v. Morrison (No. 99-5)

The Court voted 5-4 that Congress had overstepped its constitutional bounds when it authorized victims of crimes “motivated by gender” to sue for damages in federal court under federal law. Noting that such cases were traditionally a matter for state laws and state courts, the Court concluded that Congress’ authority to regulate “interstate commerce” under the commerce clause did not justify the law, and neither did its authority to enforce the equal protection clause of the 14th Amendment.


Tobacco: FDA v. Brown & Williamson (No. 98-1152)

The Justices voted 5-4 that Congress did not in fact authorize a federal agency, the Food and Drug Administration, to regulate tobacco products as “drug delivery devices.”



1. For a discussion of real law and popular images of it, see Paul R. Joseph, “Law and Pop Culture: Teaching and Learning about Law Using Images from Popular Culture,” Social Education 64, no. 4 (May/June 2000), 206-211.

2. For more discussion of the Establishment Clause and the Lemon test, see Charles White and Charles F. Williams, “School Voucher Plans Raise Key Church-State Issues,” Social Education 64, no. 1 (Jan./Feb. 2000), 56-62.



Abraham, Henry J. Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton. Totowa, NJ: Rowman & Littlefield, 1999.

“Accommodating Students’ Religious Needs.” Update on Law-Related Education 22.1 (Winter 1998): 41-43.

Barovick, Harriet. “DWB: Driving While Black: Incidents in New Jersey and Maryland Heat up the Issue of Racial Profiling by State Highway Patrols.” Time (June 15, 1998): 35.

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

Bryce, Robert. “To Pray-Or Not to Pray.” U.S. News & World Report (September 13, 1999): 26.

Cloud, John. “Can a Scout be Gay?” Time (May 1, 2000): 34-36.

Cohen, Adam. “Who Gets the Kids?” Time (January 17, 2000): 68-69.

Drinan, Robert F. “God and Football in Texas.” America (March 18, 2000): 10-12.

“Every Child on Line.” America (November 6, 1999): 3.

Gaffney, Jr., Edward McGlynn. “Religion & the Court.” Commonwealth 126.19 (November 5, 1999): 10-11.

Gillmor, Verla. “Do Computers Cross the Church-State Divide?” Christianity Today 44.2 (February 7, 2000): 25.

Greenhouse, Linda. “Split Decisions: The Court Rules, America Changes.” The New York Times on the Web (July 2, 2000) at www.nytimes.com/library/review/072000scotus-review.html.

Greenhouse, Linda. “The Louisiana Case: Justices Approve U.S. Financing of Religious Schools’ Equipment.” The New York Times on the Web (June 28, 2000) at www.nytimes.com/library/politics/scotus/articles/062900sc-schools-edu.html.

Greenhouse, Linda. “Justices Limit Visiting Rights of Grandparents in Divided Case.” The New York Times on the Web (June 6, 2000) at www.nytimes.com/library/politics/scotus/articles/060600grandparents.html.

Greenhouse, Linda. “The Precedent: Justices Reaffirm Miranda Rule, 7-2; a Part of ‘Culture’.” The New York Times on the Web (June 27, 2000) at www.nytimes.com/library/politics/scotus/articles/062700sc-miranda.html.

Greenhouse, Linda. “Supreme Court Roundup: Person’s Flight Can Justify Police Stop and Search, Supreme Court Rules.” The New York Times on the Web (January 13, 2000) at www.nytimes.com/library/politics/scotus/articles/011300cop-frisk.html.

Greenhouse, Linda. “Student Prayers Must Be Private, Court Reaffirms.” The New York Times on the Web (June 20, 2000) at www.nytimes.com/library/politics/scotus/articles/062000scotus-prayer.html.

Greenhouse, Linda. “The New Jersey Case: Supreme Court Backs Boy Scouts in Ban of Gays from Membership.” The New York Times on the Web (June 29, 2000) at www.nytimes.com/library/politics/scotus/articles/062900sc-scout.html.

Hall, Kermit L., ed. The Oxford Guide to United States Supreme Court Decisions. New York, NY: Oxford University Press, 1999.

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

“Is Crime ‘Profiling’ a Reasonable Premise?” USA Today 128.2651 (August 1999): 12.

Lynch, Timothy B. “In Defense of the Exclusionary Rule.” USA Today 128.2650 (July 1999): 22-24.

Lynn, Barry. “Should We Post the Ten Commandments in Schools? It’s an Easy—and Wrong—Solution.” American Teacher 84.7 (April 2000): 4.

Nguyen, Alexander. “The Assault on Miranda.” American Prospect 11.10 (March 27-April 10, 2000): 58-61.

Raskin, Jamin B. We the Students: Supreme Court Cases For and About Students. Washington, DC: Congressional Quarterly Press, 2000.

Richardson, L. Anita. “Supreme Court Trends.” Social Education 61, no. 7 (November/ December 1997): 436-437.

Rosen, Jeffrey. “Right Should Remain Silent.” The New Republic 222.18 (May 1, 2000): 18-21.

Shapiro, Joseph P. “The Right to be a Relative.” U.S. News & World Report (January 17, 2000): 46-47.

Singer, Alan. “Separation of Church and State Protects Both Secular and Religious Worlds.” Phi Delta Kappan 81.6 (February 2000): 462-465.

Williams, Charles F. “U. S. Supreme Court Trends.” Social Education 63, no. 6 (October 1999): 387-392.

Wright, Elliott A. “Religion in American Education: A Historical View.” Phi Delta Kappan 81.1 (September 1999): 17-20.


Charles F. Williams is editor of the American Bar

Association’s Preview of United States

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About Amici Curiae Briefs


We typically do not consider the role of interest groups in the judicial process; however, many of the same groups that file an amici curiae, or friend of the court brief, offering opinions about court cases also often lobby elected officials about pending legislation. Amici curiae briefs are generally filed by interest groups to indicate to the courts that their decisions will have an impact on the larger society. They represent a range of perspectives about the questions to be decided in a case, which are often influenced by an organizational mission—for example, to serve the homeless.


Teaching Activities and Discussion Questions


Michelle Parrini and Jennifer Kittlaus

1Research the mission of one of the interest groups that filed an amicus brief (see box on page 382) in Dickerson v. United States. Give an oral report interpreting how overruling the Miranda decision would have affected the people your interest group seeks to serve, using research to support your position. Talk also about how the Court’s decision to uphold the Miranda decision will affect these people. (A complete list of the amicus briefs filed in support of both parties in the case can be found on The New York Times website under the name of the case. See supreme.nytimes.findlaw.com/briefs). Can you think of other constitutional rules that are so embedded in routine practices and conduct that they have “become part of our national culture”? How would our lives be affected if these rules and practices were suddenly declared unconstitutional?


2 The majority decision in Illinois v. Wardlow has been criticized because it failed to acknowledge the growing evidence of the police practice of racial profiling. Research your state’s laws describing when police may stop and search people; your state’s supreme court cases about stop and frisk searches; racial profiling in your state; and racial profiling nationally. (Good sources for information include the state and national ACLU and the state and national NAACP). Evaluate the Court’s decision in Illinois v. Wardlow in light of what you have learned. Do you believe that contemporary social problems and issues should be taken into consideration when courts make decisions about laws? Why or why not?


3 Do students in your school say the Pledge of Allegiance everyday? Research the 1954 addition of the phrase “one nation under God, indivisible” to the Pledge of Allegiance, and discuss the reasons behind its inclusion. Why is this not considered a First Amendment issue? Do you think students should be required to say the Pledge of Allegiance in schools? Why or why not?


4 Make a list of U.S. historical documents where the word “God” is mentioned (for example, The Declaration of Independence). Make a list of religious elements that may show up in your school (for example, does your school hold a baccalaureate before graduation, or do you have a comparative religion elective class?). Make a list of the occurrence of the word “God” in objects or places that you encounter in everyday life (for example, U.S. currency). Why can you study written documents that use the word “God” or take a class about comparative religions but not hold prayers in school? What’s the difference? Do you feel that any of the examples on your lists violate the First Amendment? Why or why not? Do some research to support your argument.


5 Familiarize yourself with Boy Scouts of America v. Dale, James (99-0699) and Hurley v. Irish American Gay, Lesbian and Bisexual (GLIB) Association (94-749) by reading the case abstracts on the Northwestern University Medill School of Journalism website at www.medill.northwestern.edu/ docket and The Oyez Project Supreme Court Database at oyez.nwu.edu, respectively. How are these cases similar? How are they different? Compare the Supreme Court votes in the two cases. (Vote in Boy Scouts, 5-4; vote in Hurley, 9-0.) To what would you attribute the difference in the final votes?


6 Read the debate “Are School Vouchers a Good Idea?” on the ABA Division for Public Education website at www.abanet.org/publiced/focus/voucher.html. Then do your own research, using the “further reading” and “links” sections to study both sides of the debate. Do you think the two criteria that the courts use to determine whether aid to religious schools violates the Establishment Clause can be applied to the school voucher issue? (See the criteria listed in the discussion of Mitchell v. Helms on page 382 of the accompanying article.) Why or why not? Apply the criteria to your own analysis of Mitchell v. Helms. In your opinion, can the government pay for computers in religious schools? Why or why not? Do you think that the ruling in Mitchell v. Helms will have any bearing on the school vouchers debate? Why or why not?


7 Write a letter to an editor expressing your opinion about parental due process rights. Do you think that any person should be able to petition a court for visitation rights, and that they should be granted, if the court decides that it is in the best interest of the child? Why or why not? Do you agree that if a parent is fit there will “normally be no reason for the state to inject itself into the private realm of the family”? Why or why not? Can you think of examples when exceptions should be made, even if a parent is considered “fit”?


8 Make a list of some of the most important topics the U.S. Supreme Court heard cases about during the most recent term. Compare these cases to the cases decided in your state supreme court during the same period of time. You can find this information for most states on the Web at www.findlaw.com/11stategov/index.html. What does the comparison suggest about the different roles of state versus federal courts? Do some research about the military court. What is the relationship between the military court and the U.S. Supreme Court?


Michelle Parrini is acting director of the ABA Division for Public Education’s school programs unit. Jennifer Kittlaus is an editor and program assistant for the unit.