SUPREME COURT OCTOBER 2002 TERM PREVIEW--PART ONE

By MICHAEL C. DORF

Wednesday, Oct. 02, 2002

For baseball fans, October heralds the playoffs and World Series. For constitutional lawyers, the beginning of October marks a new Supreme Court Term.

Last term, the Court showed itself to be surprisingly uncomfortable with capital punishment. It forbade execution of the mentally retarded and required that juries, not judges, find the facts that result in the imposition of a death sentence. The Court also took an aggressive stance in favor of freedom of speech, invalidating a federal ban on "virtual child pornography"--that is, pornography that appears to, but does not in fact, picture actual children.

In other respects, however, the 2001-02 Term was typical of the Rehnquist Court. States' rights continued to expand, as the Court gave states immunity from private actions in front of administrative agencies. Meanwhile, the Jeffersonian metaphor of a wall separating church and state took a beating, as the Court upheld a Cleveland, Ohio school voucher program, notwithstanding the fact that ninety-six percent of the students who used the vouchers enrolled in parochial schools.

What's in store for the coming Term? Already the Court is scheduled to decide a raft of the technical statutory and procedural issues that always comprise the bulk of its docket. This column previews some of the more interesting constitutional issues before the Court in the thirty-nine cases it agreed to hear before breaking for the summer.

In my next column, I'll examine some of the newly added matters and those just beyond the horizon. Although the principal cases arising out of the war on terrorism have not yet made their way to the high court, it is only a matter of time before the status of enemy combatants, detention without trial, and closed deportation hearings reach the Justices.

Megan's Laws: Due Process and Ex Post Facto Challenges

Two cases test the legality of so-called "Megan's Laws," statutes requiring that convicted sex offenders and certain other categories of felons register with state and local authorities upon their release from prison.

In Connecticut Dep't. of Public Safety v. Doe, the United States Court of Appeals for the Second Circuit invalidated such a law on the ground that it branded the ex-felons to whom it applied as more dangerous than other persons, without an adequate factual basis. In lawyers' terms, the court said, the Connecticut law denied "procedural due process"--an opportunity for ex-cons to make their case that they are not especially dangerous.

The Second Circuit was also presented with the argument that Megan's Law is an ex post facto law--a law imposing a criminal penalty after the prohibited conduct has occurred. That court declined to rule on the issue.

However, in a separate decision involving Alaska's Megan's Law, the Ninth Circuit Court of Appeals accepted the ex post facto argument. In Smith v. Doe, it ruled that Alaska could only apply its registration requirement to persons who committed their crimes after the Megan's Law was adopted.

Although predicting Supreme Court decisions can be perilous, I'll go out on a limb and say that the Court will reject both challenges. In the Connecticut case, the Court will likely find that the registration requirement provides the public with truthful information and that any suggestion that convicted felons are, on average, more dangerous than other persons, is reasonable.

In the Alaska case, the Court will likely find that the Ex Post Facto Clause does not apply because registration is not a form of punishment. Under the Court's precedents, if the state uses the fact of conviction for non-punitive purposes, then the Ex Post Facto Clause is not implicated. Most dramatically, the state can use the fact of a prior conviction as the basis for confining someone in a mental institution, even after he has completed his prison sentence. Given that ruling, the registration requirement of Megan's Law will probably be upheld.

Three Strikes And You're Out: Cruel and Unusual Punishment?

Along with Megan's Laws, during the 1990s, many states also passed laws imposing very long sentences for recidivist offenders. Commonly called "Three Strikes and You're Out" laws, these statutes were motivated by high-profile violent crimes perpetrated by people with long criminal records.

Although Three Strikes laws are meant to get at serious offenders, they are typically written to apply to all felonies. California's law is fairly typical. Because of its broad wording, a man who shoplifted Cinderella, Free Willy 2, and two other videotapes from a K-Mart received a sentence of fifty years to life. Another man who shoplifted three golf clubs was sentenced to twenty-five years to life.

In Lockyer v. Andrade, the Court will decide whether these sentences were so disproportionate to the underlying conduct as to constitute cruel and unusual punishment in violation of the Eighth Amendment.

Cross-Burning: Can It Be Prohibited Consistent with the First Amendment?

A 1952 Virginia statute bars cross-burning "with the intent of intimidating any person or group of persons." Two separate 1998 incidents of cross-burning gave rise to convictions under the statute. Those convictions were reversed by a 4-3 vote of the Virginia Supreme Court, which found that the law violates the First Amendment.

Cross-burning, the Virginia high court said, is a form of expression, and the state may not select this particular form of expression for punishment. The state can prohibit intimidating conduct generally. It can even prohibit setting a fire for the purpose of intimidating. But, the court explained, it cannot make expressive conduct the trigger for criminal liability.

In Virginia v. Black, the U.S. Supreme Court will decide whether it accepts this logic, which closely tracks its own ruling in the 1992 case of R.A.V. v. St. Paul. There, the Justices reversed the conviction of a flag burner who was prosecuted under an ordinance that applied to symbolic conduct that "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."

The issue in the Black case is whether the R.A.V. precedent applies where the law does not single out a particular perspective in so many words.

The Copyright Clause: Violated by a Long Copyright Extension?

Most of the action in intellectual property law these days concerns new technology, but in Eldred v. Ashcroft, the Court will address a question that affects traditional copyright protection as well. In 1998, Congress passed a law extending existing copyrights by twenty years. That extension, plaintiff Eldred argues, is unconstitutional.

Article I, Section 8, clause 8 of the Constitution grants Congress the power "To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Eldred argues that the extension of copyright protection violates the requirement that exclusive rights only last "for limited Times."

The U.S. Court of Appeals for the D.C. Circuit disagreed. After all, copyrights were not extended to last infinitely long. An additional twenty years, the court ruled, was reasonable.

The best argument against the law's constitutionality makes reference to the first clause of the constitutional language. Copyright (and other intellectual property) protection promotes production by giving authors and inventors financial incentives. As Judge David Sentelle wrote in dissenting from the D.C. Circuit's decision not to rehear the case: "Once a work is published, however, extending the copyright term does absolutely nothing to induce further creative activity by the author--and how could it? The work is already published."

States' Rights: Does Congress Have Authority to Require Family Medical Leave?

In recent years, the Court has repeatedly invalidated acts of Congress that permitted individuals to bring private lawsuits against the states. Under the newly emerged doctrine, Congress can authorize such lawsuits if it is acting pursuant to its power to enforce the Fourteenth Amendment but not under its power to regulate interstate commerce.

Just since 2000, the Court has held that challenged provisions of the Age Discrimination in Employment Act, the Violence Against Women Act, and the Americans With Disabilities Act were not valid efforts to enforce the Fourteenth Amendment. Accordingly, in each of these cases, the same 5-4 majority gave states immunity against private lawsuits.

Nevada Department of Human Resources. v. Hibbs is the latest in this line of cases. At issue is whether the family medical care provision of the Family and Medical Leave Act of 1993, can be justified as a measure that enforces the Fourteenth Amendment.

The provision requires employers to grant unpaid leave for up to twelve weeks so that an employee can care for a sick spouse, child, or parent. The plaintiffs argue it is a valid effort to enforce the Fourteenth Amendment's Equal Protection Clause because, by requiring that leave be given to all employees, it combats the sexist tendency of employers to assume that women, rather than men, should be taking responsibility for such care.

Although the Ninth Circuit ruled that the Act was valid, the plaintiffs face an uphill struggle in the U.S. Supreme Court. The Court's cases involving Congressional power to enforce the Fourteenth Amendment have said that Congress can only act to remedy what it, the Court, considers a violation of the Constitution, and there is nothing in the Court's precedents to suggest that a state employer's failure to give employees leave to care for sick relatives would constitute such a violation. This is likely to be another 5-4 victory for states' rights.

Foreshadowing Aliens' Rights: A Preview of War on Terrorism Cases

The case currently on the docket that comes closest to touching on the war on terrorism is Demore v. Kim. Kim was convicted of an aggravated felony, served his sentence, and upon his release, was taken into custody by the federal government pending deportation. A federal law provides that the Attorney General had no discretion to release him on bail but Kim argued that he was entitled to an individualized determination of whether he was a danger or a flight risk.

The Ninth Circuit Court of Appeals agreed, holding that the federal law is a violation of the Fifth Amendment's Due Process Clause as applied to Kim, a permanent resident alien. The court indicated that the law might be valid as applied to transient aliens, however.

The case is important in its own right, but also because it may signal how the Court is thinking about the rights of aliens to particularized showings, an issue that is before the lower courts in several terrorism and war-related cases.

The Lighter Side of the Upcoming Term

Finally, no preview of the Supreme Court Term would be complete without mentioning the pending question of whether the State of Washington unconstitutionally used the interest on money held by lawyers in trust for clients to fund speech with which those lawyers and clients might disagree.

The case is notable not for the momentousness of the underlying legal question but for its amusing caption. The Life of Brian Award goes to Washington Legal Foundation v. Legal Foundation of Washington.

Always look on the bright side of life.


Michael C. Dorf is Professor of Law at Columbia University.

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