Summer 2003

Supreme Court Update: Affirmative Action, Privacy, and
First Amendment Rulings Mark Close of 2002-2003 Term

As its 2002-2003 term drew to a close, the U. S. Supreme Court issued numerous decisions on issues of importance to the Section. Of particular interest are decisions involving affirmative action and state sodomy laws , for which cases the Section prepared ABA amicus curiae briefs. Other significant rulings involve the Fifth Amendment right against self-incrimination, forced medication of mentally incompetent criminal defendants, campaign contributions by nonprofit corporations, detention of illegal immigrants during deportation proceedings, and others.

On June 23, the Court held 5-4 in Grutter v. Bollinger (No. 02-241) (opinion by O'Connor) that achieving a diverse student body in higher education, particularly in professional schools, is a compelling state interest justifying the University of Michigan's Law School's narrowly tailored consideration of race in admissions decisions.

When the school denied admission to petitioner Grutter, a white Michigan resident with a 3.8 GPA and 161 LSAT score, she filed suit, alleging that respondents had discriminated against her on the basis of race in violation of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U. S. C. §1981; that she was rejected because the Law School uses race as a "predominant" factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups; and that respondents had no compelling interest to justify that use of race.

In rejecting this claim, the Court adopted arguments similar to those made in the ABA's Section-prepared amicus curiae brief. The Court expressly endorsed Justice Powell's view, articulated in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), that student body diversity is a compelling state interest that can justify using race in university admissions. Attaining a diverse student body, said the Court, is at the heart of the Law School's proper institutional mission, and its "good faith" in designing and adopting a narrowly tailored admissions process to achieve that interest is "presumed" absent "a showing to the contrary."

The Court found that the law school's admissions policy does not define diversity solely in terms of racial and ethnic status and does not restrict the types of diversity contributions eligible for "substantial weight," but affirms the law school's commitment to diversity with special reference to the inclusion of African-American, Hispanic, and Native-American students, who otherwise might not be represented in the student body in meaningful numbers. By aiming to enroll a "critical mass" of underrepresented minority students, the policy seeks to ensure the student's ability to contribute to the law school's character and to the legal profession.

At the same time, however, the Court rejected 6-3 the University of Michigan's undergraduate admissions scheme. Gratz v. Bollinger (No. 02-516) (opinion by Rehnquist). While citing its holding in Grutter that diversity can constitute a compelling state interest, the Court held in Gratz that the University's current undergraduate admissions policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of race, is not narrowly tailored to achieve educational diversity and therefore violates the Equal Protection Clause of the 14th Amendment.

On June 26, the Court decided 6-3 in Lawrence and Garner v. Texas (02-102) (opinion by Kennedy) to strike down a Texas sodomy law as violating due process guarantees under the 14th Amendment. In so doing, the Court overruled Bowers v. Hardwick, 478 U. S. 186 (1986), in which it had upheld such a law. The ABA submitted a Section-prepared brief in support of petitioners, arguing, inter alia, that the law is unconstitutional and contrary to the rule of law because it infringes individual liberty and irrationally singles out a discrete group for second-class treatment.

In holding that "the rationale of Bowers does not withstand careful analysis," the Court cited specifically to Justice Stevens' dissenting opinion in Bowers, in which he said the Court's "prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of liberty protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons."

"Justice Stevens' analysis, in our view," said the Court in Lawrence, "should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."

On June 23, in United States, et al. v. American Library Association, et al. (No. 02-361) (judgment announced by Rehnquist), a plurality of the Court reasoned that because public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights, the Children's Internet Protection Act (CIPA) does not induce libraries to violate the Constitution and therefore is a valid exercise of Congress' spending power.

Two forms of federal assistance help public libraries provide patrons with Internet access: discounted rates under the E-rate program and grants under the Library Services and Technology Act (LSTA). Upon discovering that library patrons, including minors, regularly search the Internet for pornography and expose others to pornographic images by leaving them displayed on Internet terminals or printed at library printers, Congress enacted CIPA to, inter alia, prohibit public libraries to receive federal assistance for Internet access unless they install software to block obscene or pornographic images and to prevent minors from accessing material harmful to them. Appellees, a group of libraries, patrons, Web site publishers, and related parties, sued the Government, challenging the constitutionality of CIPA's filtering provisions.

Internet terminals, wrote Rehnquist, are not acquired by a library in order to create a public forum for Web publishers to express themselves, nor is Internet access in public libraries a "traditional" or a "designated" public forum. Rather, a library provides such access for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality. Given that the decisions by most libraries to exclude pornography from their print collections are not subjected to heightened scrutiny, it would make little sense, said the Chief Justice, to treat libraries' judgments to block online pornography any differently.

In other major action, on May 27, a divided Court issued its judgment in Chavez v. Martinez (No. 01-1444) (announced by Thomas) that the Fifth Amendment's Self-Incrimination Clause cannot support the view that mere coerced questioning violates the Constitution. While Martinez was being treated for gunshot wounds received during an altercation with police, he was interrogated by Chavez, a patrol supervisor. Martinez admitted that he used heroin and had taken an officer's gun during the incident. At no point was Martinez given Miranda warnings. Although he never was charged with a crime, and his answers never were used against him in any criminal proceeding, Martinez filed a 42 U. S. C. §1983 suit, maintaining that Chavez's actions violated his Fifth Amendment right not to be "compelled in any criminal case to be a witness against himself," and his Fourteenth Amendment substantive due process right to be free from coercive questioning.

A plurality of the Court reasoned, inter alia, that an officer is entitled to qualified immunity if his alleged conduct did not violate a constitutional right. A "criminal case," wrote Justice Thomas, at the very least requires the initiation of legal proceedings, and police questioning does not constitute such a case. Statements compelled by police interrogation may not be used against a defendant in a criminal case, but it is not until such use that the Self-Incrimination Clause is violated. Martinez never was made to be a "witness" against himself because his statements never were admitted as testimony against him in a criminal case, the plurality said.

On June 16, the Court decided 6-3 in Sell v. United States (No. 02-5664) (opinion by Breyer) that involuntary medication may be forced upon a mentally incompetent defendant. The Court upheld that decision under the framework of Washington v. Harper, 494 U. S. 210, and Riggins v. Nevada, 504 U. S. 127, which permit the involuntary administration of antipsychotic drugs to render a mentally ill defendant competent to stand trial on serious criminal charges if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial's fairness, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests. The Court emphasized, however, that this standard permits forced medication solely for trial competence purposes in certain instances.

Also on June 16, the Court decided 7-2 in Federal Election Commission v. Beaumont (02-403) (opinion by Souter) that the federal campaign law barring direct corporate political contributions properly extends to nonprofit corporations and does not violate the First Amendment. The Court reasoned that the ban was and is intended to "preven[t] corruption or the appearance of corruption," and, citing longstanding precedent, specifically rejected the argument that deference to congressional judgments about the necessity and efficacy of corporate contribution limits turns on whether a given corporation is nonprofit or for-profit, affluent or not affluent.

On April 29, the Court held unanimously in Demore v. Kim (No. 01-1491) (opinion by Rehnquist) that detention of lawful permanent resident aliens during removal proceedings is constitutionally permissible. After respondent, a lawful permanent resident alien, was convicted in state court of first-degree burglary and, later, of "petty theft with priors," the Immigration and Naturalization Service (INS) charged him with being deportable from the United States in light of these convictions and detained him pending his removal hearing. The Court held that Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons such as respondent be detained for the brief period necessary for their removal proceedings. Although the Fifth Amendment entitles aliens to due process in deportation proceedings, detention during such proceedings is a constitutionally valid aspect of the process, even where, as here, aliens challenge their detention on the grounds that there has been no finding that they are unlikely to appear for their deportation proceedings.

The Court denied certiorari in two other immigration cases, Snyder v. Rosales-Garcia (02-1464) and Ashcroft v. Singh (02-1123). In Snyder, the Court refused to consider when the government can indefinitely detain illegal immigrants caught at U. S. borders. The U. S. had argued that the matter was important for national security and urged the Court to intervene to ensure the U. S. does not attract more illegal aliens who know they have broad rights if they reach U. S. shores. In Singh, the Court rejected an appeal by the U. S. that asked when an immigrant who misses a deportation hearing can challenge the outcome, thereby letting stand a ruling of the U.S. Court of Appeals for the Ninth Circuit that had sided with a citizen of India who was two hours late for a deportation hearing because of confusion about the starting time. The appeals court said that Ranjit Singh's case was a highly unusual one and that he should be allow to challenge the judge's decision to order him deported. The U. S. had argued that the ruling would allow thousands of claims from people who missed their hearings, burdening immigration officials.

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