Supreme Court Trends


Charles F. Williams

The Supreme Court closed out its 2000 term in June after issuing seventy-nine opinions and agreeing to take up more questions of interest to students and educators alike. Among the issues already slated for review after the 2001 term opens on October 1 are cases that could decide the future of affirmative action, the death penalty, and on-line pornography.


Looking Back

Last term was contentious for the justices, and not just because of the December decision in Bush v. Gore, No. 00-949—the case that effectively decided the 2000 presidential election. It determined both that the Florida recount procedures established by the Florida Supreme Court violated the constitutional guarantee of equal protection and that the Florida courts did not have time to modify their procedures in order to count the votes in a constitutional manner.

Throughout the term, Chief Justice Rehnquist and Justices Scalia and Thomas usually saw eye to eye, whereas Justices Stevens, Souter, Ginsburg, and Breyer often disagreed with them. Time and again, these two coalitions faced off to match wits, reasoning, and judicial philosophy with a sometimes obvious testiness and impatience.

There is no reason to think that the justices do not respect one another on a personal level, but their judicial disagreements seemed especially sharp last term, with several justices going so far as to question whether their colleagues’ arguments were intentionally disingenuous. Dissenting in Bush v. Gore, Justice Stevens complained,

What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land.

Dissenting in United States v. Mead Corporation, No. 99-1434, Justice Scalia objected to the majority’s “pretense” that its opinion was nothing more than an application of prior case law.

With a few notable exceptions (including Kyllo v. United States and Atwater v. City of Lago Vista, discussed later), the 2000–2001 term thus seemed to reflect a hardening of predictable views on both the right and left. As Drake University Law School Professor Thomas E. Baker noted in the August 2001 issue of ABA’s Preview of United States Supreme Court Cases, all nine justices have been together for seven years now, time enough to fine-tune their own judicial philosophies while at the same time to become familiar with their colleagues’ oft-expressed views. (Justice Breyer, the court’s most recent appointment, took office in 1994.)

Thus, with the same “conservative” three often lined up against the same “moderate-to-libera#148; four, the wild cards in most of the close cases were held by Justices O’Connor and Kennedy. For the most part in 2000–2001, wherever these two “moderate-to-conservative” justices went, so did the Court. In the end, in fact, an impressive twenty-five cases were decided by 5–4 margins. In fourteen of those decisions, both Kennedy and O’Connor joined Rehnquist, Scalia, and Thomas to form a “conservative” majority. In eight others, one or the other of the two justices joined Stevens, Souter, Ginsburg, and Breyer to provide the Court’s “libera#148; wing with the margin of victory.

Because they seldom found themselves on the losing end of any issue, O’Connor and Kennedy also issued the fewest dissents on the Court. With Justice O’Connor dissenting in only eight cases and Kennedy in just seven, Court watchers and litigants alike have begun to zero in on these justices as the two whose concerns must always be taken very seriously indeed in the areas of particular interest to high school students: free speech and privacy.


First Amendment

One of the opinions of most interest to educators was released at the end of the term—the widely anticipated Good News Club v. Milford Central School, No. 99-2036, which held 6–3 that the establishment clause does not require public schools to bar religious clubs from meeting after hours at school. Writing for the Court, Justice Thomas acknowledged the schoo#146;s concern that permitting the Good News Club to meet on school grounds might cause some young children to assume that the school endorsed the club’s Christian beliefs. But he concluded that countervailing concerns—including the free speech rights of the club and its members—should not be outweighed by a “modified heckler’s veto, in which a group’s religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive.”

Also decided at the end of the term was Lorillard Tobacco Company v. Reilly and Altadis U.S.A. Inc. v. Reilly, Nos. 00-596 and 00-597. These cases held 5–4 that state regulations that restrict the advertising of tobacco products near a school or playground are preempted by federal law and 9–0 that they violate the First Amendment as well. Justice O’Connor wrote for the Court that the First Amendment constrains state efforts to limit advertising of tobacco products because “so long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information.”

Meanwhile, the right to privacy was also at the heart of several high-profile cases this term. Whereas the Fourth Amendment has been interpreted as protecting a “reasonable expectation of privacy,” over the years, some commentators have sarcastically referred to a seeming “drug exception.” Last term, however, the supposed exception to the Fourth Amendment warrant requirement failed to materialize in any of the three big drug cases.


Drug Searches

In Kyllo v. United States, No. 99-8508, the Court was asked whether a Fourth Amendment search takes place if the police scan your home with a thermal imager, a video camera-like device that detects infrared radiation and displays images on the basis of their relative warmth. Armed with such an imager, police theoretically could scan private residences at random when looking for suspicious “hot spots” that might indicate that a homeowner is growing marijuana indoors with the aid of high-intensity grow lights, which give off a lot of heat.

In this case, Danny Kyllo argued that the police should have obtained a warrant before scanning his Florence, Oregon, home. The Ninth Circuit, however, ruled that the scan was not a search at all, and, therefore, the police did not need a warrant under the Fourth Amendment. It noted that under Katz v. United States, 389 U.S. 347 (1967), a police action amounts to a “search” depending on whether it invades someone’s “reasonable expectation of privacy.” That inquiry, it said, has two facets. First, the defendant must show that he had a subjective expectation of privacy. Kyllo had to show that he meant to keep the amount of heat escaping through the walls and roof of his home private. Second, the defendant had to show that his subjective expectation was one that “society” is prepared to recognize as objectively reasonable.

The Ninth Circuit concluded that Kyllo failed to make either showing. Kyllo–who, it turns out, was growing marijuana inside his home—appealed to the Supreme Court, arguing in his petition that the issue was ultimately “whether the Fourth Amendment’s guarantee of personal security in your home must yield to scientific advances that make traditional barriers of privacy obsolete.”

That Orwellian note rang true for Justice Scalia. Writing for an unusual coalition that included Justices Souter, Thomas, Ginsburg, and Breyer, he said that he, too, believed that “the question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.” Those limits, Scalia concluded, are these: Police are conducting a Fourth Amendment search, and thus must obtain a search warrant, whenever they are obtaining “by sense-enhancing technology” any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area—at least when the technology is not in “general public use.”


Drug Roadblocks

Drug roadblocks fared no better than high-tech surveillance last term. The Supreme Court previously has upheld roadblocks to check for the presence of illegal aliens (United States v. Martinez-Fuerte, 428 U.S. 543 [1976]) and for signs of impaired driving (Michigan Dept. of State Police v. Sitz, 496 U.S. 444 [1990]). But in Indianapolis v. Edmond, No. 99-1030, the Court drew the line at police roadblocks that are set up for the purpose of interdicting drugs.

A search or seizure, Justice O’Connor pointed out, is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. And although the Court has carved out some exceptions that permit suspicionless stops that are designed to serve “special needs,” such as highway safety or guarding against smuggling at the United States borders, “we have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.”

Intriguingly, Justice Thomas wrote separately to explain that, although he agreed with the dissenters that the Court should feel constrained to uphold the Indianapolis roadblocks under the Fourth Amendment law set forth by Sitz and Martinez-Fuerte, he for one would welcome the opportunity to consider overruling both of those precedents. Indeed, he said, “I rather doubt that the framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.” Only the drivers’ failure to brief and argue that question prevented him from reconsidering the Court’s precedents now.


Drug Tests

Ferguson v. City of Charleston, No. 99-936, involved a Fourth Amendment challenge to a drug-testing policy at a South Carolina public hospital. Adopted in an effort to reduce the incidence of “cocaine babies” born at the hospital, the policy called for some pregnant women to be tested–without warrants or probable cause–for cocaine use. Positive test results were shared with law-enforcement officials, and some women were arrested and threatened with prosecution if they did not complete drug treatment.

The Supreme Court sided with the women, ruling 6–3 that the hospita#146;s interest in using the threat of criminal sanctions to deter pregnant women from using cocaine did not justify a departure from the general rule that an official, nonconsensual search is unconstitutional if not authorized by a valid warrant.

Writing for the Court, Justice Stevens concluded,

While state hospital employees, like other citizens, may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require.


The Seatbelt Case

Can the police arrest you—that is, handcuff you in front of your kids and take you to jai#151;because you forgot to buckle your seat belt? Can a state subject you to full custodial arrest for a fine-only offense? The answer, it turns out, depends on what your state law provides, because the Fourth Amendment doesn’t make such arrests unconstitutional.

The question arose in Atwater v. City of Lago Vista, No. 99-1408, a suit brought by Gail Atwater, a woman who was taken to jail after being stopped on her street by a Lago Vista police officer who noticed that neither she nor either of her two young children was wearing a seat belt as required by Texas law. She was booked and placed in a cell for about an hour before being released and paying a $50 fine.

She and her husband filed a civil rights suit (authorized by 42 U.S.C. Section 1983, a federal statute) that charged the city with violating her Fourth Amendment right to be free from unreasonable seizure. In another unexpected lineup, the Supreme Court sided with the city in an opinion written by Justice Souter and joined by Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas. Justice Souter did agree with one of Atwater’s contentions—that the equities in this case favored her, not the city. But that, he wrote, was not enough to justify minting a new rule of constitutional law that would require “sensitive, case-by-case determinations of government need.”

Other high-profile 2000 term cases likely to spark lively debate in the nation’s classrooms include PGA Tour Inc. v. Martin, No. 00-24, and United States v. Oakland Cannabis Buyers’ Cooperative, No. 00-151. In the Professional Golf Association (PGA) case, the Court ruled 7–2 that the Americans with Disabilities Act requires the PGA Tour to waive its “walking rule” to permit disabled golfer Casey Martin to use a golf cart during PGA tournaments. The Court reasoned that allowing disabled entrants to ride in a golf cart when all other contestants must walk will not “fundamentally alter” the nature of PGA tournaments. Justices Scalia and Thomas dissented.

In the Cannabis Buyers’ case, the Court unanimously ruled that there is no “medical necessity exception” to the Controlled Substances Act’s prohibition on the manufacture and distribution of marijuana. The Court reversed the Ninth Circuit Court of Appeals, in which it had thought it relevant that “there is no legal alternative to cannabis for the effective treatment” of certain serious conditions caused by AIDS and cancer.


Looking Ahead

If, as it now seems likely, the Court’s makeup remains the same in October 2001, we can expect Justices Kennedy and O’Connor to continue to make the difference as the Court takes up more hot-button issues, including affirmative action, the death penalty, and government efforts to regulate on-line pornography.

Affirmative Action

In Adarand Constructors, Inc. v. Mineta, No. 00-730, the Court will revisit the constitutionality of government programs that seek to assist small businesses “owned and controlled by socially and economically disadvantaged individuals.”

Adarand Constructors filed this suit eleven years ago, arguing that a twenty-five-year-old federal statutory regime known collectively as the Disadvantaged Business Enterprise (DBE) program violated its equal protection rights when it caused a federal highway contractor to subcontract a job installing guardrails to a minority-owned firm rather than to Aderand, which had submitted the lowest bid.

This appeal will mark the Supreme Court’s third swing at this case. In 1995, it reversed the Tenth Circuit, which had upheld the DBE program after applying “intermediate scrutiny.” The High Court ordered the appellate court to apply a “strict scrutiny” standard, under which the DBE program’s race-conscious presumptions must be struck down unless shown to be “narrowly tailored” to serve a “compelling” governmental interest. On remand, the district court held the program unconstitutional, but the Tenth Circuit determined that the subsequent appeal was moot. In 2000, the Supreme Court reversed yet again, directing the Tenth Circuit to address the merits of the case. The Tenth Circuit then held that the DBE certification programs pass constitutional muster, even under the strict scrutiny test.

The case, which began in 1990 as a dispute between two small firms over a small contract for installing highway guardrails, has the potential to affect affirmative action programs of all sorts across the nation. Currently, federal law requires that a subcontracting clause similar to the one being challenged in this case appear in most federal agency contracts. These clauses grant that the prime contractor will receive additional compensation if it hires subcontractors certified as small businesses controlled by “socially and economically disadvantaged individuals,” and also state that the contractor “shall presume” that socially and economically disadvantaged individuals include “Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans,” and other minorities.

In its brief, however, Adarand does not merely argue that, in practice, the statutory presumption that minority individuals are disadvantaged sometimes unfairly tips the playing field against small nonminority firms. Adarand goes much further, asking the Court to broadly hold that there “never” can be a compelling interest in preferential treatment of racial groups in government contracting, an argument that is widely viewed as relevant to the ongoing debate over university admission criteria.


Online Pornography

The Child Online Protection Act (COPA) makes it unlawful to make any communication for commercial purposes by means of the World Wide Web that is “harmful to minors,” unless good faith efforts are made to prevent children from obtaining access to such material. The question presented in Ashcroft v. ACLU, No. 00-1293, is whether the First Amendment permits the government to rely on community standards to identify the material that is “harmful to minors.” The government’s previous attempt to protect minors from online pornography–the Communications Decency Act–was struck down in ACLU v. Reno, 521 U.S. 844 (1997), on the grounds that the statute would permit potentially harmful Internet content to be judged by the standards of the community most likely to be offended by it. COPA seeks to address the Court’s concerns by clarifying that Congress now seeks to regulate only web communications designed for commercial purposes and in a manner similar to laws restricting print pornography. Under COPA, adults would still be able to gain access to pornographic websites, but they would first need to verify their age through the use of a “credit card, debit account, adult access code, or adult personal identification number” or any other “reasonable measure.”

Meanwhile, in Ashcroft v. Free Speech Coalition, No. 00-795, the Supreme Court will review a ruling by the Ninth Circuit that struck down a congressional measure criminalizing the transmission, reception, or possession of an image that “appears to be of a minor engaging in sexually explicit conduct” or that describes such an image in a manner that “conveys the impression” that it shows a child. The law being challenged, the Child Pornography Prevention Act of 1996, seeks to counter those pornographers who strive to avoid criminal sanctions by using computer- generated images or young-looking adults to “simulate” child pornography.


Death Penalty

Finally, capital punishment appears to be one area where judicial minds can be changed. The case to be argued this fall, McCarver v. North Carolina, No. 00-8727, asks whether executing persons who are mentally retarded constitutes a form of “cruel and unusual punishment” that is barred by the Eighth Amendment. In a 1989 case, Penry v. Lynaugh, 492 U.S. 302, the Court narrowly held that the Eighth Amendment does not bar the execution of all mentally retarded offenders. There was, in Justice O’Connor’s words, “insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited in the Eighth Amendment.” Since then, however, Justice O’Connor has publicly expressed reservations about capital punishment, and the number of death penalty states barring the execution of mentally retarded defendants has grown from two to thirteen. Twelve other states bar capital punishment altogether. G



Charles F. Williams is editor of ABA’s
Preview of U.S. Supreme Court Cases.

For more information about the 2000–2001 term and to stay abreast of the Court’s work throughout the coming year, be sure to bookmark the ABA’s Supreme Court website at There you will find regularly updated “Case at a Glance” features describing the issues presented in every pending case, links to the Court’s opinions in every case, and an easy-to-use form for subscribing to the full text of ABA’s Preview of United States Supreme Court Cases, the only publication providing expert analysis of every pending Supreme Court case before oral argument. (Preview subscriptions can also be obtained by calling the Division for Public Education at 312-988-5729.)


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Teaching Activities


Kenneth L. Watson and Jennifer Kittlaus

Instructional note: Furnish students with a copy of the table “Supreme Court Decisions at a Glance” as well as the resources list at the end of this article. Encourage them to use these tools to become acquainted with the cases mentioned in these activities.


Supreme Court Decisions at a Glance, 2000 Term

Case Question Decision


City of Indianapolis v. Edmond, No. 99-1030



 The Good News Club v. Milford Central School, No. 99-2036



Kyllo v. United States, No. 99-8508



Lorillard Tobacco Co. v. Reilly, No. 00-596, and Altadis U.S.A. Inc. v. Reilly, No. 00-597 (consol.)




Fourth Amendment/Drug Checkpoints: Does the Fourth Amendment forbid a highway checkpoint program whose primary purpose is discovery and interdiction of illegal narcotics?

 Yes, drug checkpoints violate the Fourth Amendment because their primary purpose is indistinguishable from the governmental general interest in crime control.


First Amendment/Freedom of Religion: Does the establishment clause require schools to bar religious clubs from meeting after hours at school?

 No, such a meeting does not violate the establishment clause, and the clause therefore did not justify discriminating against the Good News Club because of its religious viewpoint, in violation of the free speech clause.

Fourth Amendment/Thermal Imaging Scans: Does the Fourth Amendment forbid the warrantless use of a thermal imaging device to detect heat sources within a private home?

 Yes, when the government uses a device that is not in general public use to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search” and is presumptively unreasonable without a warrant.

 First Amendment/Tobacco Advertising Near School: Are state regulations that restrict the advertising of tobacco products near a school or playground preempted by federal law or in violation of the First Amendment?

Yes, regulations of outdoor and point-of-sale advertising for cigarettes are preempted by the Federal Cigarette Labeling and Advertising Act, and its outdoor advertising regulations violate the First Amendment.

Letters to the Court. Kyllo v. United States and City of Indianapolis v. Edmond asked the Supreme Court a question it frequently resolves: Did a police action really amount to a “search” or “seizure”? If so, was the search or seizure reasonable? What proved novel in these cases was that the government had used advanced technologies and strategies for waging its war on drugs, introducing a new question: Should there be a “drug exception” to the Fourth Amendment’s search warrant requirement? Begin the class discussion of this case by having students define and consider the terms search-and-seizure, right to privacy, and reasonable expectation of privacy. Ask why students think the Founders found it important to include a warrant requirement in the Bill of Rights. During your summary, emphasize that the Founders feared that the creation of a strong federal government would cause individuals to lose autonomy and personal freedoms. Ask students to become acquainted with, and to report on, other Supreme Court search-and-seizure cases such as Katz v. United States. Have students write the Supreme Court a letter for or against allowing a “drug exception” to the Fourth Amendment, citing portions of the Bill of Rights and/or search-and-seizure cases.


Debate on Religion in Schools. Begin the discussion by asking a student to read the opening clauses of the First Amendment (establishment and free-exercise of religion clauses). What important protections do these clauses afford to all Americans, whether or not they practice a religion? Why do students think the issue of religious freedom is controversial in the school environment? Do they think this issue can ever be conclusively resolved? Help the students prepare for their debate on freedom of religion by introducing them to the issue and decision in The Good News Club v. Milford Central School. Have them examine the case to see what arguments were used for and against allowing meetings of the religious club at Milford Central School after school hours. Ask students to volunteer to join one of two teams that will debate the question, “Should religious clubs be allowed to meet on school grounds after school?” To defend its position, each team may use arguments from The Good News Club and other Supreme Court religion cases (for ideas, they may visit A class vote will decide the winning team. Any student(s) agreeing with the vote may write a “majority opinion,” while anyone disagreeing may write a “dissenting opinion.”


Advertisement Analysis. The decision in the consolidated Supreme Court case Lorillard Tobacco Company v. Reilly and Altadis U.S.A. Inc. v. Reilly has been criticized for not restricting tobacco product advertisements near schools or playgrounds. Acquaint your students with this case. Ask them to think about where tobacco advertising appears in your community. (Students should mention several media, including newspapers and magazines, billboards, and drug-store counters.) How else are students exposed to smoking (smokers around them, movies, novels)? Are there many students at your school who smoke? Do students think that tobacco ads are an important factor in causing students at your school to smoke? Why or why not? Are anti-tobacco ads an important factor in convincing them not to smoke? Why or why not? Have a student read the First Amendment right to free speech. Talk about why commercial advertisements are a protected form of free speech. Have students find, copy or record, and analyze both tobacco and anti-tobacco advertisements and public service announcements. In their analysis, they should ask questions such as, Who is the probable target audience (or audiences) for the ad? To what values does each ad appeal? How is each ad constructed to appeal to those values? Are there characters, symbols, or wordings that are especially effective in appealing to those values? Which ads—those for or against tobacco use—do students think are the most prevalent or influential in your community, and why? When the students have completed their analyses, select several students to form a student supreme court unanimously in favor of the Lorillard decision, and several students to form a student-lawyer “dream team” that will argue an appeal before this court against tobacco advertising near schools. Students will enact a special student supreme court session where the dream team attempts to reverse the student justices’ decision in this case.


 Affirmative Action Handbook. This term, Adarand Constructors, Inc. v. Mineta, No. 00-730, will ask the Supreme Court to revisit the constitutionality of affirmative-action programs involving small, minority-owned businesses. Ask students to define affirmative action and suggest reasons why individuals may be for or against affirmative action as a public policy. Divide students into five groups, each assigned to examine a benchmark civil rights law or Supreme Court case. Students should use their textbooks as a starting point to find laws/cases that interest them. They might continue this process by visiting, which will show them how to find out more about possible choices: The Civil Rights Act of 1964 (Public Law 88-352); The Civil Rights Act of 1965 (Public Law 89-110); Fourteenth Amendment and Equal Protection Clause; and Regents of the University of California v. Bakke and Hopwood v. Texas. While making their selection, students should ask such questions: What exactly did this law/court decision guarantee to minorities? Did any dramatic incidents influence the law’s promulgation or the court’s decision, and what were these incidents? How did people react to the new law/decision? Did this reaction result in any further legislation or court cases? If so, describe these. For court cases, what was the reasoning, and did it seem to closely follow or strain the law to answer to public demands? After completing their research, students should organize their findings for inclusion in an Affirmative Action Handbook that the class can consult to inform classroom discussion whenever an affirmative action issue is being covered in the news.


Kenneth L. Watson is director of the ABA Division for Public Education. Jennifer Kittlaus is an editor and a program manager for the unit.





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

Gaffney, Jr., Edward McGlynn. “Religion & the Court.” Commonweal 126, no. 19 (November 5, 1999): 10–11.

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

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

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

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

Singer, Alan. “Separation of Church and State Protects Both Secular and Religious Worlds.” Phi Delta Kappan 81, no. 6 (February 2000): 462–65.

Wright, Elliott A. “Religion in American Education: A Historical View.” Phi Delta Kappan 81, no. 1 (September 1999): 17–20.




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