Spring 2003

Supreme Court Hears, Decides Numerous Cases of Importance to Section

The Supreme Court's winter docket has included arguments heard or decisions rendered in cases involving affirmative action, sodomy law, cross-burning, equal protection, ineffective assistance of counsel for capital defendants, racial discrimination in jury selection, access to reproductive health clinics, Interest on Lawyers' Trust Accounts, and others involving Section issues.

On Apr. 1, the Court heard arguments in two major affirmative action cases, Gratz v. Bollinger (02-516) and Grutter v. Bollinger (02-241), in which it will decide whether the use of race as a factor in the admissions decisions of the University of Michigan and the University of Michigan Law School, respectively, is unconstitutionally discriminatory.

On Mar. 26, the Court heard arguments in Lawrence and Garner v. Texas (01-102), in which the issue is whether a Texas statute that prohibits consensual sodomy by individuals of the same sex, but not those of the opposite sex, violates the Fourteenth Amendment's Equal Protection and Due Process Clauses.

On Apr. 7, the Court decided 6-3 (opinion by O'Connor) in Virginia v. Black (01-1107) that, because burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan, which often has used cross burnings as a tool of intimidation and a threat of impending violence, states may ban the practice without violating the First Amendment. Although such burnings also have remained potent symbols of shared group identity and ideology, serving as a central feature of Klan gatherings, the protections that the First Amendment affords speech and expressive conduct are not absolute. The First Amendment permits a state to ban "true threats" by which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals, even if the speaker does not actually intend to carry out the threat. A prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur.

On Mar. 26, in Brown v. Legal Foundation of Washington (01-1325), the Court upheld 5-4 (opinion by Stevens) the use of Interest on Lawyers' Trust Accounts (IOLTA) programs by states to raise funds for legal services. The Court reasoned that a state law requiring that client funds that otherwise could not generate net earnings for the client be deposited in an IOLTA account is not a "regulatory taking." The ruling is an important victory for legal aid programs nationwide that receive nearly $200 million a year from this funding source. The ABA filed an amicus curiae brief in the case.

On Mar. 24, the Court heard arguments in Wiggins v. Smith (02-311) to determine whether a defense attorney's failure to investigate available mitigation evidence constitutes ineffective assistance of counsel. This case, in which the ABA also filed an amicus curiae brief, could help clarify standards for legal representation in capital cases.

On Feb. 25, in Miller-El v. Cockrell (01-7662), the Court decided 8-1 (opinion Kennedy; dissent by Thomas) that when a habeas applicant seeks a certificate of appealability (COA) under the Anti-terrorism and Effective Death Penalty Act (AEDPA), the court of appeals should limit its examination to a threshold inquiry into the underlying merit of the claims and not undertake full consideration of the factual or legal bases supporting them.

It can suffice to support the issuance of a COA to adduce evidence demonstrating that, despite the neutral explanation of the prosecution, peremptorily striking 10 of 11 eligible African-Americans from serving on Miller-El's jury in the final analysis was race based. Miller-El satisfied this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his case or that the issues presented were adequate to proceed. He need not have convinced a court that he would prevail, but only have demonstrated that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.

On Feb. 26, the Court held 8-1 in Scheidler v. National Organization for Women, Inc. (NOW) (Nos. 01-1118 and 01-1119) (opinion by Rehnquist; dissent by Stevens) that, although it was undisputed that petitioners (abortion opponents) interfered with, disrupted, and in some instances completely deprived respondents (reproductive health clinics) of their ability to exercise their property rights by intimidating their clients from accessing respondents' facilities, petitioners did not "obtain" property from respondents under the meaning of the Hobbs Act. Accordingly, they did not commit "extortion" within the meaning of the Racketeer-Influenced and Corrupt Organizations Act (RICO) and therefore did not deprive the reproductive health clinics of their property rights.

Other recently decided cases of interest to the Section include:

Ewing v. California (01-6978) (plurality; judgment announced by O'Connor) - Upholding California's "three strikes" law, reasoning that federal courts should be reluctant to question the proportionality of a sentence established by a state legislature because it is an important policy decision generally left to the states, and in this case, California's rationale of aiming to incapacitate and deter repeat felons is sufficient justification for the sentence.

Lockyer v. Andrade (01-1127) (5-4; opinion by O'Connor) - Reversed U. S. Court of Appeals for the Ninth Circuit, holding that the only legal principle applicable in deciding the constitutionality of California's "three strikes" law is the "gross disproportionality" principle, which is applicable only in "exceedingly rare" and "extreme" cases. State legislatures generally have broad discretion in developing sentencing schemes; it therefore was not unreasonable of the California Court of Appeals to affirm double consecutive sentences as allowable "contours" of that discretion.

Smith v. Doe (01-729) (6-3; opinion by Kennedy) - Where the stated purpose of a law is public protection, a plaintiff must prove by clear and convincing evidence that the real purpose of a state law that requires convicted sex offenders to register with their state of residence is criminal punishment.

Connecticut Department of Public Safety v. Doe (01-1231) (9-0) - A state law requiring convicted sex offenders to register with the state, without a prior hearing on the issue of future dangerousness, does not violate due process because the registration requirement is based upon a previous conviction.

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