The 2002-03 Supreme Court Term in Review:
Landmark Cases Stress the Theme Of Equality

By VIKRAM DAVID AMAR
Friday, Jul. 11, 2003

For constitutional lawyers, the Supreme Court Term that just ended was a blockbuster - perhaps the biggest since the late 1980's, if one takes into account both breadth and depth.

Granted, there were some notable omissions. For instance, there were no major cases addressing "war on terror" issues - such as what due process requires for those detained, and the scope of the Fourth Amendment's ban on unreasonable searches and seizures as applied to the Administration's terror campaign. In the near future, the Court will have no choice but to take up some of these issues.

Nevertheless, the Court addressed a huge range of very important constitutional topics this Term. If the Term had a single, overriding theme (and I realize that to claim it did is inherently to oversimplify), it was probably "old-fashioned equal protection."

By that phrase, I mean the kind of equal protection analysis in which the Court affords protection to groups that are politically underrepresented and victims of historical discrimination. This was the kind of equal protection doctrine the Court tended to fashion in the period from the 50s to the 80s, and the kind it returned to this Term

For example, in the University of Michigan Law School affirmative action case, the Court had in mind the equality interests of racial minorities; in the Family and Medical Leave Act case, those of women; and in the same-sex sodomy case, those of gays and lesbians.

Indeed, the only quintessential minority group that didn't seem to fare well in the Court this term was aliens (non-citizens), who lost their biggest case of the year. In Demore v. Kim, the Court held that an alien awaiting a deportation proceeding did not have a right to remain free in the interim.

The Headline Grabbers: The Five (or Six, because of a Tie) Cases That Got the Most Play

1. Grutter v. Bollinger. In this decision, the Court, by a 5-4 vote, upheld the University of Michigan Law School's race-based admissions program. The ruling was huge - affecting numerous public universities, and private ones too, because federal funding requires that private schools respect equal protection ideals.

Both the media and the Court itself fully recognized the case's import. The oral argument was the only domestic news story that shared New York Times top headline space with the War in Iraq. It was also only the second oral argument in history as to which, shortly after it concluded, the Court made available an audio version for the public.

But for all the hoopla, the decision was not as surprising as some made it seem. For Justice O'Connor to have come out the other way would have been radically conservative - there is nothing in the Fourteenth Amendment's text or founding history that mandates complete color-blindness. For Justice O'Connor to have joined the more conservative Justices would also have been inconsistent with her previous statements about race-consciousness being permissible, so long as race doesn't crowd out all other considerations.

2. Lawrence v. Texas. This was the 6-3 ruling invalidating Texas' ban on same-sex sodomy. It was a ringing endorsement of some version of the substantive due process right to individual privacy - the very basis for the Roe v. Wade and Planned Parenthood v. Casey rulings. In addition, Justice Kennedy's opinion for the Court, and Justice O'Connor's concurrence in Lawrence made clear that the Court was concerned as well about the equal protection rights of gays and lesbians, whose conduct was singled out.

On both due process and equality grounds, Lawrence is undeniably a huge legal victory for the gay rights movement. And the opinion - along with his authorship, several years ago, of the similarly-written Romer v. Evans - will doubtless help define Justice Kennedy's legacy.

3. Nevada Dep't. of Human Resources v. Hibbs. Here the Court, in a 6-3 ruling, upheld Congress' power under the Fourteenth Amendment to subject States to monetary liability for violating the Family and Medical Leave Act (FMLA).

The case was both unexpected, and significant, because in five similar cases - each asking whether Congress could, using its Fourteenth Amendment remedial powers, subject States to damage liability - the Court had always said "No," siding with the States.

The sudden "Yes" answer Hibbs provided complicates the New Federalism the Court's conservative majority has espoused over the past decade or so. In addition, Hibbs struck a blow for women's rights, by placing so much weight on the history of gender inequity in the workplace that had inspired Congress to pass the FMLA in the first place.

5. (Tie) Virginia v. Black. This case also involved criminal law - but this time, the relevant constitutional provision was the First Amendment. In its mildly surprising decision, the Court, by a 6-3 vote, upheld Virginia's power to make it a distinct crime to burn a cross as part of an illegal intimidation.

I say "mildly surprising" because a decade ago, the Court had said in R.A.V. v. St. Paul that St. Paul could not single out "racial" fighting words and treat them differently from other fighting words because to do so would be to discriminate based on the content of one's message. But the Black Court seemed to back away from that ruling.

The Court tried to distinguish R.A.V. by arguing that a burning cross does not carry with it any particular message - only a generic message of hatred. Justice Thomas' concurrence was more honest - he acknowledged that cross burning is uniquely associated with racial and religious supremacy. But it is hard to square this acknowledgement with R.A.V., and the complete message-neutrality it requires. Thus, while Black did not overrule R.A.V. in so many words, it certainly should cause us to rethink what R.A.V. means.

5. (Tie) Stogner v. California. Letting alleged child molesters off the hook is always going to make the evening news - and that's what a 5-4 majority of the Court did here, invoking the Constitution's Ex Post Facto Clauses, which prohibit certain retroactive changes to the criminal laws.

As I have argued in an earlier column, I believe California's attempt to retroactively alter a statute of limitations in Stogner did not violate the Constitution. In holding otherwise, the Court failed to my mind to identify any plausible reliance on the earlier statute of limitation on the part of any alleged criminal: For instance, no defendant claims (or could credibly claim) to have thrown out evidence (say, a calendar proving an alibi on the date of the alleged molestation) the day after the statute of limitations expired, because he thought he was at that point free and clear of any suspicion.

Moreover, while it is true that - as Justice Breyer's majority opinion pointed out - memories fade over the years, making it harder to establish one's innocence, this problem affects all long statutes of limitation, (and the Court has approved long statutes of limitation); the problem of lost or faded evidence is not peculiar to, or heightened in the context of, retroactively lengthened limitation periods.

The Four that Got Away: Lost Opportunities

1. Nike v. Kasky. This case was supposed to provide some important clarification on what "commercial speech" is, exactly, and how much the First Amendment protects it. Instead, the Court dismissed the case, probably because it lacked jurisdiction and/or because the case did not present the First Amendment issues crisply. Given that these problems were flagged for the Court before it granted review, the Justices and their clerks should have gotten their act together before litigants had to waste hundreds of thousands of dollars preparing briefs on the merits.

2. Hason v. California Dep't of Health. This was another case that got dismissed after oral argument. California decided to give the plaintiff the injunctive relief he wanted, thus mooting this Americans with Disabilities Act case. Unfortunately, however, the Supreme Court declined to tell California to pay the plaintiff's bill for having to brief the merits issues in front of the Supreme Court.

4. Eldred v. Ashcroft. Eldred presents a final shoe that didn't really drop. In this case, the Court upheld Congress' 1998 Copyright Term Extension Act. The result is that Congress has seemingly complete power to extend copyright protection whenever it wants. This case would have been huge had it come out the other way, driving great swathes of copyrighted material into the public material. As things stand, the Court's decision simply guarantees that we will all keep living with the long copyright terms that are already familiar.

The Three That Made a Splash, But Won't Be Remembered

1. Gratz v. Bollinger. This was the "twin" to Grutter, the University of Michigan Law School case. In Gratz, the Court struck down Michigan's undergraduate admissions policy, which had automatically assigned a 20-point plus to the applications of African-Americans, Latinos and Native-Americans.

Gratz might have been significant on its own, but not when taken together with the law school case the Court decided the same day. Admissions offices across the country now know they need merely mimic Michigan Law School's vague, flexible affirmative action program to be safe from constitutional challenges.

2. Chavez v. Martinez. This case had striking facts, but the Court reached a less-than-striking holding. The case arose when cops questioned an individual who had been shot by police. The questioning occurred while medical treatment was being administered to the gunshot victim, and without the police having given him any Miranda warnings. But the fractured opinions of the various Justices failed to resolve very many legal issues. All we really know, at this point, is that the case will be a mess on remand to the U.S. Court of Appeals for the Ninth Circuit.

3. Miller-El v. Cockrell. This case also caught the press's eye because of its noteworthy facts: the case involves quite extraordinary allegations of racial discrimination in jury selection. Again, however, the holding was less than earth-shattering. Rather than addressing the discrimination allegations directly, the case turned on some very technical, tedious statutory standards governing federal court review of state court rulings in the field of habeas corpus.

The Two that the Press Didn't Play Up, But Lawyers Will Care Very Much About

1. State Farm Mutual Automobile Ins. Co. v. Campbell. This was perhaps the most important case of the Term for practicing lawyers. Here, the Court said that ordinarily a punitive damage component should not exceed the compensatory damage component by much - and that where the ratio between the two is greater than 9:1, the award will virtually always violate the Constitution's guarantee of substantive due process.

The decision will subject many damage awards - past ones, as to which appeals have not yet been exhausted, and future ones as well - to new scrutiny. While purporting not to lay down a hard rule, the Court was clearly sending a message to trial judges and juries - not to mention the plaintiff's bar - that punitive damages award have gotten out of control.

Previously, many Courts of Appeals had been requiring plaintiffs who sued employers under Title VII for sex or race discrimination to produce "direct evidence" of such discrimination in order to shift the burden of proof to the employer. (Once the burden shifts, the employer has to prove that, for some independent reason, it would have treated the plaintiff the same way even absent any gender or race bias.) The Court rejected any such requirement.

This was a very big case for discrimination plaintiffs - likely the biggest in many years. It was also a 9-0 vindication for the U.S. Court of Appeals for the Ninth Circuit - one of the few lower courts that had followed the words of Title VII itself. In a column later this Summer, I will discuss some other aspects of the Ninth Circuit's track record.


Vikram David Amar is a professor of law at the University of California, Hastings College of the Law in San Francisco. He is a 1988 graduate of the Yale Law School, a former clerk to Justice Harry Blackmun, and a co-author of a constitutional law casebook. Before teaching, Professor Amar practiced at the firm of Gibson, Dunn & Crutcher.

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