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Posted Sept. 6, 2002
A Look in the Rearview Mirror: What Did the Supreme Court Just Do?

A start-the-year briefing on the significance of recent U.S. Supreme Court rulings drew a standing-room-only crowd to Caplin Pavilion Sept. 5, where law professors Barbara Armacost, Pamela Karlan, Elizabeth Magill and Robert O'Neil analyzed decisions bearing on the Fourth Amendment, the death penalty, state sovereign immunity and the Establishment Clause.

Magill, O'Neil and Armacost
Prof. Barbara Armacost discussed the Court's rulings on the Fourth Amendment at the panel; from left, Prof. Elizabeth Magill and Prof. Robert O'Neil.

Panel moderator A. E. Dick Howard noted that Chief Justice William Rehnquist has held his post for 16 years and it's been eight years since a vacancy appeared on the court, the longest such interval in American history. The court heard 88 cases in its last term and issued 85 signed opinions. Twenty-seven decisions were unanimous and 21 were by 5-to-4 votes. Of those, 14 cases saw the same justices voting together along ideological fault lines. The docket of cases chosen by the court avoided issues related to abortion, affirmative action and school desegregation that many court observers had looked for rulings on, Howard said.

On Fourth Amendment protections against unlawful searches and seizures, an area likely to feel repercussions from the 9/11 attacks, Armacost observed that as of last term, 9/11 has merely had the effect of "solidifying directions that the Supreme Court was already taking." The court had previously determined that no seizure occurs if police approach a citizen in a public area and ask to interview him, even though most people fear that to deny such a request (which she described as one of "inherent coercion") arouses suspicion. In one case from the last term the court ruled that police officers need not inform citizens that they have the right to decline to cooperate. The court believes that if legal justification had to be established for every question, a vital investigative tool—voluntary street stops—would be lost. In another case, the Court emphasized the importance of crediting the views of trained law enforcement officers in assessing suspicious circumstances under the "totality of the circumstances" standard for judging the legality of searches. The most important thing to remember for the future, noted Armacost, is that "the specter of terrorism will have a huge effect on the way Fourth Amendment cases come out whenever those cases involve evidence-gathering tools that are viewed as essential to the war against terrorism."

On death penalty matters, Karlan termed the court's rulings "wholesale and retail": the former were good in the general principles they upheld, the latter were bad in their specific effects on enforcing those principles. Rulings reduced the discretion of judges in death penalty sentencing by not allowing them to overturn jury decisions and also resolved that the execution of mentally retarded individuals is indeed forbidden as cruel and unusual punishment. Meanwhile, other rulings made it more difficult for defendants in death penalty cases to prove that their lawyer did not mount a vigorous defense and held that lawyers' apparent conflicts of interest in representing clients do not really compromise their efforts. It saw contrary examples as reflecting "tactical decisions" by otherwise sincere and competent lawyers.

Armacost, Karlan, and Howard
From left, professors Armacost, Pamela Karlan, and moderator A.E. Dick Howard.

On matters of federalism, Magill said the trend of the Rehnquist court has been to make the concept more meaningful by showing greater respect for the powers of the states. In earlier decisions it limited the commerce powers of the national government to regulating just economic behavior and forbid Congress from ordering states to pass certain legislation, a doctrine known as "commandeering." The last term's decisions were about the Eleventh Amendment, which prevents the federal courts from hearing certain suits brought against states. The court says it is meant to "protect the dignity of the states," but given the exceptions to the court's rules, the "dignity" of the states seems symbolic. "There's no unifying theory behind the federalism decisions," she said. "Perhaps the best way to understand the decisions is that the court is hacking back the creeping power of the federal government."

On matters related to the Establishment Clause, the foundation of the wall between church and state in America, O'Neil was aghast at the decision to uphold Cleveland's school voucher plan, an outcome he partly attributed to a flawless presentation by the city's attorneys. The ruling "has the clear effect of using public funds to subsidize religious schools," he said. "It is a major symbolic victory for proponents of educational choice." But conceding that, he predicted the decision would have "no profound influence to reshape elementary and secondary education."

The panel was organized by the Student Legal Forum.
• Reported by M. Marshall

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