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Trampling Our Values

Cash on Delivery
Looking for Love in All the Wrong Places
by Mae Bunagan

Page Inflation
The Rising Cost of Textbooks
by Lily Huang

Democrats' Dilemma
Finding a Message in Opposition
by Eli Sprecher with Danny Schlozman

Courting Disaster
The Case of Rehnquist v. Liberties
by Patrick Taylor Smith

Starving for Treatment
Inadequate Coverage for Eating Disorders
by Leah Litman

Introspective
Deconstructing the T
by Danny Schlozman

Salmagundi

The Back Page
Moore Strikes Again
by Brendan Connors

After the Democrats' defeat at the polls this month, neither the executive nor the legislative branches are controlled by individuals who regard our civil liberties as anything more than inconveniences. That leaves the judiciary and, at its apex, the Supreme Court to act as our desperate rear guard until the body politic regains its senses. Unfortunately, that magisterial body of nine men and women is divided, confused and in disarray. Legal scholars have strongly criticized the Rehnquist Court for its grotesquely partisan decision in Bush v. Gore, which made painfully apparent its genuine ideological divide: three justices are unabashedly, painfully conservative (Thomas, Rehnquist, and Scalia), three are fairly liberal (Stevens, Souter, and Ginsburg), and three are somewhere in the middle with two leaning to the right (Kennedy, O'Connor) and one leaning to the left (Breyer). The result of this philosophical brouhaha is a mess of 5-4 decisions and contradictory rulings. This makes prediction a risky business indeed, as the unforeseeable intervention by one of the moderates on one side or the other can disrupt the balance of the court.

Despite this, it is reasonable to consider, based on ideology and past voting records, how these justices will rule. Furthermore, with the challenge of the War on Terrorism and ubiquitous pressure of radical, right-wing lobbying organizations, the Supreme Court will have the opportunity to make new law in landmark decisions on a whole host of issues. What follows is an analysis, based on previous rulings and possible ideological developments, of some of the most important cases that are or will be on the Supreme Court's docket during the next year.

LOCKYER V. ANDRADE

Lockyer, argued before the Supreme Court on November 5, is the first case to challenge California's infamous “Three-Strikes” law. Passed in 1994, the “Three Strikes” law forces judges to pass down a sentence of 25 years to life in the event of an individual's third “serious” felony. Unlike similar laws around the country, California makes no distinction between violent and non-violent felonies when one starts counting up the “strikes.” California is the only state where one can receive such a harsh punishment for a non-violent third strike. It is precisely this provision of the law that Lockyer v. Andrade challenges.

Leandro Andrade received two sentences of 25 years for stealing $153 worth of videotapes (including Snow White and, ironically, Free Willy) from a K-mart. Prosecutors in California have the power to consider some misdemeanor offenses as felonies in the light of prior convictions. This means that Andrade committed a misdemeanor, but prosecutors decided to trump it up to a felony so they could give Andrade 50 years for stealing some videos. In a similar case that will be argued concurrently with Lockyer v. Andrade, Ewing v. California, Gary Ewing received a life sentence for stealing $1,200 worth of golf clubs. Again, a misdemeanor was trumped up to a felony so the three strikes law could take effect.

The 9th U.S. Circuit Court of Appeals has ruled that both of these cases constitute “cruel and unusual” punishments under the 8th Amendment to the U.S. Constitution and struck down the law for Andrade and Ewing. If the Supreme Court upholds the 9th Circuit's ruling, it will only invalidate the law in the particular instances of Andrade and Ewing and not the law itself because the challenge rests on the grounds that giving life for non-violent, low-grade felonies is unconstitutional. Nevertheless, it would be a first step towards inserting some much needed compassion and flexibility into the system. One precedent that the Court may consider is Harmelin v. Michigan. In Harmelin, the Court ruled 5-4 that receiving life without parole for possessing 650 grams of cocaine did not violate the 8th Amendment, stating that there was no “proportionality guarantee” in the 8th Amendment's prohibition of cruel and unusual punishment. The Court may not consider this ruling to be a controlling precedent in the current cases. First, Lockyer and Ewing are both questioning the prosecutor's decision to charge them with felonies instead of misdemeanors in light of the non-violence of their crime. Further, the Court ruled in Harmelin that the possession of 30,000 doses of cocaine (650 grams) was a sufficiently heinous and vicious crime to mitigate the heaviness of the punishment. It is not clear that such reasoning applies to stealing $153 worth of videotapes. Based upon that, we can reasonably believe that Souter and Kennedy (Kennedy less certain than Souter) will leave the majority in Harmelin and join the dissenter Stevens. Breyer was not on the court at the time, and it is likely that he will support the plaintiff's claim. This leaves O'Connor as the clear swing vote. Since the reasoning about the proportionality of the punishment in Harmelin no longer applies, O'Connor will probably vote in favor of the plaintiffs, giving Lockyer and Ewing a reprieve with a very slight majority.

DETROIT FREE PRESS V. ASHCROFT; NORTH JERSEY MEDIA GROUP V. ASHCROFT

These cases represent some of the first challenges to government actions after the terrorist attack on September 11. More specifically, both the Detroit Free Press and the North Jersey Media Group challenged the practice of the blanket closure of special interest deportation hearings. In other words, the government said that it did not even need a compelling reason to make deportation hearings secret; they could hold them whenever they wanted. Chief Immigrant Judge Michael Creppy (the head of the court that specifically deals with the deportation of immigrants) ruled that the government could close any deportation hearing that involved people of “special interest”: a euphemism for the people detained after September 11. Both media organizations challenged the government's action on First Amendment grounds.

On August 26th, the 6th U.S Circuit Court of Appeals ruled in Detroit Free Press v. Ashcroft that the government could only close deportation hearings on a “case by case basis” and had to produce compelling reasons for the action. However, the 3rd U.S Circuit of Appeals, by a 2-1 decision on October 8th, ruled to the contrary: it repudiated the “case by case” standard but stated that “On balance, however, we are unable to conclude that openness plays a positive role in special interest deportation hearings at a time when our nation is faced with threats of such profound and unknown dimension.” It is clear to two judges of the 3rd Circuit that terrorist actions make our civil liberties disappear. Primarily, the Detroit Free Press and the North Jersey Media Group are charging that the blanket closure of deportation trials violates the free press clause of the first amendment.

The Supreme Court now must be the mediator of an appeals-court split. While one can hope that the Supreme Court will rule in favor protecting our civil liberties, the ideological makeup of the Court does not foster confidence. However, one also must consider that, in New York Times Co. v. United States, the Court set a very high standard for muzzling the press for national security reasons, a standard that has arguably not been met in this case. Despite this, it is likely that the Court will support the blanket closure of deportation hearings since the liberals are likely to fall out amongst themselves. Breyer does not have a consistently civil libertarian record with regards to free speech and free press issues, making it likely that he will rule with the conservative block. This means that even if Kennedy, who has the strongest free speech record, leaves the conservative block, the Court will still uphold blanket closure. Still, liberals can hope this disturbing development will not come to pass because it is still possible that Breyer will find New York Times Co v. United States controlling, which would give the more “liberal” decision of “case by case” basis for secret deportation trials a slight majority.

US V. AMERICAN LIBRARY ASSOCIATION

This case will decide the constitutionality of the Children's Internet Protection Act (CIPA). This law was passed in December 2000 and conditioned the receipt of federal funds on libraries placing “Internet filters” on their computers. The intent of the law was to prevent children from accessing pornography through library terminals.

The American Library Association (ALA) and the American Civil Liberties Union (ACLU) argued that such controls are insufficiently flexible to eliminate only pornography and allow access to constitutionally protected material. Further, the ALA argued that local officials would be more effective in dictating their own policies regarding Internet use that would not be so broad as to prevent access to non-pornographic materials. The designated appellate court in Eastern Pennsylvania agreed with plaintiffs: “Because of the inherent limitations in filtering technology, public libraries can never comply with CIPA without blocking access to a substantial amount of speech that is both constitutionally protected and fails to meet even the filtering companies' own blocking criteria.” Despite this unambiguous ruling by the lower court, the government has asked and received a writ of certiorari from the Supreme Court.

Given its history of striking down similar laws in the past, it is likely that the Supreme Court will uphold the decision of the Pennsylvania court. However, this law gives lie to the conservative conceit that they do not want bigger government. It is likely that the Supreme Court will perform its judicial review function in this case and prevent an over-aggressive federal government from violating our rights. The most recent case featuring obscenity, Free Speech Association v. Ashcroft, is not directly controlling but it demonstrates an attitude of speech protection. In the above case, the Court struck down a law that, in its zealousness to ban child pornography, could be construed to ban even non-pornographic speech. In much the same way, the ALA is arguing that these filters will also censor non-pornographic materials. This, along with issues of federalism (the ALA argued that individual communities have already done a good job regulating child computer access), should convince a large majority of the Court to strike down CIPA.

LAWRENCE AND GARNER V. TEXAS

Police barged into John Lawrence's home “looking for burglars” but found Lawrence and Tyron Garner engaged in consensual sex. Both of these men were arrested, tried, and convicted under a Texas law that bans consensual, homosexual sodomy but allows consensual, heterosexual sodomy. Clearly, such a law violates both our right to privacy and it deliberately singles out one group of people, an “equal protection” violation. It is precisely on these grounds that the law was challenged in Texas, but the Texas Supreme Court has refused to hear the case, punting it over to the US Supreme Court. The Supreme Court has recently agreed to hear the case.

The Supreme Court is faced with two opposing precedents in this case. In the 1986 case of Bowers v. Hardwick, the Court upheld a Georgia law banning all sodomy, both hetero and homosexual. However, in a surprise 6-3 decision in Romer v. Evans, the Rehnquist Court struck down Amendment 2 of Colorado, which prohibited municipalities from passing laws to ban discrimination on the basis of sexual orientation. In its opinion, the court stated that anti-gay sentiment was insufficient justification for legislation. It is hard to predict which precedent the High Court will find that decision to be controlling, but all six justices from the Romer majority remain on the court. That fact-and the Arkansas Supreme Court's recent ruling against an anti-sodomy law very similar to Texas's-bodes well for Lawrence and Garner's chances. In Romer, the Court stated that “it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end.” While the Court was able to argue (very implausibly) in Bowers that sodomy laws served legitimate state ends, it is clear that the same rationale cannot be used to limit only homosexual sodomy. It seems clear that the opinion of Romer applies to Garner v. Texas equally well: “It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” Expect the six justices of Romer to rule with Garner and Lawrence.

GRUTTER V. BOLLINGER

Barbara Grutter was a white law school applicant to the University of Michigan (represented by the President of the University, Bollinger). When Michigan rejected her application, she sued the University of Michigan for admitting individuals with lower GPA and test scores whose position was “boosted” by belonging to minority racial groups. Ms. Grutter argued that such practices were unconstitutional under the 14th Amendment, as they amounted to “reverse discrimination.” A district court ruled in favor of Grutter but was overturned by the 6th Circuit US Court of Appeals. Grutter, and the undergraduate Gratz in Gratz v. Bollinger, have asked the Supreme Court to reverse the 6th Circuit's ruling.

While the Supreme Court is ideologically ripe for the dismantling of affirmative action, several powerful obstacles are in its way. First, in the landmark affirmative action case Regents of the University of California v. Bakke, the Court stated very forcefully that public educational institutions have a compelling interest to produce diverse environments for their students. Further, the presiding Burger Court stated clearly that race could be a factor in admitting students as long as it was not the only factor, which is why they struck down quotas as unconstitutional. However, the Bakke decision was heavily divided and simply does not have the controlling authority that a 9-0 decision would have had. Furthermore, the minority students of the University of Michigan Law School were permitted to intervene. The district court decision to allow the minority students to argue on the defendant's behalf prevents their voices from being marginalized as they have been in the past.

Another important issue will be the innate racism of “merit” admission scores like standardized test scores. Unlike other affirmative action cases, the merit of “merit-only” admission standards will be vigorously debated in Grutter v. Bollinger. Like so many of these cases, this one also finds the Court pulled in opposite directions. However, the principle unambiguously stated in Bakke is that universities have a compelling interest to maintain diversity. This principle, and the legal intervention of minority students, dictates that to rule with the plaintiff is to completely overturn Bakke. Despite recent decisions undermining affirmative action (especially the relatively weak Adarand Constructors, Inc. v. Pena), I would be surprised if this court was not very reluctant to do that.

MCCONNELL V. FEC

On November 6, nine plaintiffs, including Senator Mitch McConnell (R-Kent.), submitted an “omnibus” brief challenging the Bipartisan Campaign Reform Act of 2002 to a district court. Anticipating legal problems with the legislation, Congress created an expedited process for challengers to reach the Supreme Court. This case will be the most systematic and thorough legal discussion of campaign finance reform in 30 years. The plaintiffs state that the Act's new limitations on hard and soft money contributions violate the First Amendment provisions protecting freedoms of speech and association. Powerful forces have aligned on both sides of the issue (guess which side the NRA supports). On an interesting note, all the former heads of the ACLU filed an amicus curiae brief supporting the Reform Act while the current leadership of the ACLU remains vehemently opposed.

If the ACLU cannot figure out which side it wants to be on, you can imagine the chaos that would reign in the Supreme Court justices' private chambers. The court has struck down campaign finance reform laws before with their famous “money is speech” formulation in Buckley v. Valeo, but this legislation was crafted with that formulation in mind. Whether this legislation successfully achieves the goal of crafting constitutional campaign finance reform legislation is, of course, the question in McConnell. However, the consensus is that the Bipartisan Campaign Reform Act violates the standards of Buckley. It seems that the legislature is giving the Court a chance to overturn Buckley-although, given its previous maintenance of “money is speech” formulation-it seems unlikely that this Court will. A cynic might think that Congress is hoping the Supreme Court will bail them out by invalidating the law. This way, the legislators can look like reformers and blame the Supreme Court when their constituents ask where campaign finance reform went.

Questions? Comments? Please contact perspy@hcs.harvard.edu