State & Local News Vol. 23, No. 3, Spring 2000 SUPREME COURT WATCH by L. Anthony Sutin The action-packed 1999-2000 Supreme Court Term has provided some of its first important decisions. Some are less startling than some cert-watchers had predicted, but there still are several opportunities for more seismic shifts in our constitutional terrain. Campaign Contribution Caps Upheld-Nixon v. Shrink Missouri PAC (decided January 24, 2000) The Court put to rest fears (or hopes) that the 1976 case of Buckley v. Valeo would be overruled, as it upheld a Missouri campaign finance law that limited the amount that an individual could contribute to a candidate for statewide office to $1,075. In an opinion for a six-Justice majority, Justice Souter recognized the law's legitimate aim of avoiding corruption or the appearance of corruption of public officials. The contribution limits instilled public confidence in the election system. The majority opinion concluded that the contribution limits imposed by the law did not unduly burden First Amendment free speech rights by suppressing political speech. Justice Souter wrote, "There is no indication that those limits have had any dramatic adverse effect on the funding of campaigns and political associations." The majority rejected the challengers' argument that Missouri had failed to produce any empirical evidence to substantiate the fear of corruption or its appearance. The opinion states that "Buckley demonstrates that the dangers of large, corrupt contributions and the suspicion that large contributions are corrupt are neither novel nor implausible." In light of the record before the Court in Buckley, and some consistent observations from the discussion surrounding the Missouri law and the challengers failure to cast serious doubt on those conclusions, Justice Souter wrote that "there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters." Justices Kennedy, Thomas, and Scalia dissented, writing that the decision weakened the constitutional protection for free speech. Justice Kennedy stated, "The court's decision has lasting consequences for political speech in the course of elections, the speech upon which democracy depends." He would overrule Buckley and free state legislatures "to attempt some new reform, [and] if, based upon their own considered view of the First Amendment, it is possible to do so." In his dissent, Justice Thomas observed that "[c]ontributions to political campaigns generate essential political speech. And contribution caps, which place a direct and substantial limit on core speech, should be met with the utmost skepticism." He concluded that "[s]tates are free to enact laws that directly punish those engaged in corruption and require the disclosure of large contributions, but they are not free to enact generalized laws that suppress a tremendous amount of protected speech along with the targeted corruption." This ruling should dispose of a number of pending challenges to campaign contribution limits in other states. Standard for Voting Rights Act Preclearances Is No Retrogression-Reno v. Bossier Parish School Board (decided January 24, 2000) In a 5-4 decision, the Court announced that the Department of Justice may not withhold preclearance of a state or local alteration in election procedures when the new plans do not leave racial and ethnic minorities worse off than under the prior system, even if the change was adopted with a discriminatory purpose. In this case, the Bossier Parish School Board proposed a new redistricting plan but rejected a version that would have created two black-majority districts. Under section 5 of the Voting Rights Act, a covered jurisdiction must demonstrate that a proposed change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c. Justice Scalia, writing for the majority, stated that the preclearance determination under section 5 "is nothing more than a determination that the voting change is no more dilutive than what it replaces[.]" The preclearance provision of the statute "prevents nothing but backsliding, and preclearance under [the law] affirms nothing but the absence of backsliding," Justice Scalia wrote. The majority opinion emphasizes, however, that preclearance on this standard does not bar a legal challenge to the election change under section 2 of the Act, which bars discriminatory voting practices. Writing for the dissenters, Justice Souter said, "The behavior of Bossier Parish is a plain effort to deny the voting equality that the Constitution just as plainly guarantees. . . . Now executive and judicial officers of the United States will be forced to preclear illegal and unconstitutional voting schemes patently intended to perpetuate discrimination." Justice Souter observed that the "evil in Congress' sights was discrimination, abridgment of the right to vote, not merely discrimination that happens to cause retrogression, and Congress' intent to frustrate the unconstitutional evil by barring a replacement scheme of discrimination from being put into effect was not confined to any one subset of discriminatory schemes." State Sovereign Immunity Bars ADEA Suits-Kimel v. Florida Board of Regents (decided January 11, 2000) The Court continued its efforts of the past few Terms to fortify the sovereign immunity from litigation enjoyed by states. In the latest round, the Court held that Congress did not successfully abrogate state sovereign immunity when it passed the Age Discrimination in Employment Act. Under Seminole Tribe and prior decisions, the Court clarified that Congress only can abrogate sovereign immunity when exercising its legislative authority under section 5 of the Fourteenth Amendment; an exercise of Article I legislative power (such as the broad power flowing from the Commerce Clause) won't do the trick. In the Kimel case, the Court concluded that while the ADEA was a purported exercise of Congress' remedial and enforcement power under the Fourteenth Amendment, it failed to qualify as an appropriate exercise of that authority. The Court reasoned that the substantive requirements the ADEA imposes on state and local governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act, particularly in light of the prior precedent holding that age is not a suspect classification under the Equal Protection Clause. The Court also rejected the argument that ADEA constituted a valid exercise of section 5 power in the form of prophylactic legislation. The legislative record was virtually devoid of any foundation for a belief that state and local governments were unconstitutionally discriminating against their employees on the basis of age. As with the other recent sovereign immunity decisions, the Court was split 5-4, reflecting a fundamental divergence in views about the constitutional underpinnings of sovereign immunity. Writing for the majority, Justice O'Connor lamented, "The dissenters' refusal to accept the validity and natural import of decisions like [the 1890 sovereign immunity decision in] Hans . . . makes it difficult to engage in additional meaningful debate on the place of state sovereign immunity in the Constitution." Following the Kimel decision, on January 21, the Court granted review of an Arkansas case that presents the question of whether sovereign immunity bars suits against states under the Americans with Disabilities Act. Given the breadth of the ADA, a pro-immunity ruling will have major impact. Readers should bear in mind that a ruling upholding sovereign immunity in any of these cases should not be equated with a decision striking down the federal statute itself. Finding sovereign immunity applicable only removes one avenue of litigation by private parties. It does not, in itself, render the substantive requirements of the laws inapplicable to state and local governments. State antidiscrimination laws also may create causes of action that remain viable. Unanimous Court Upholds Drivers Privacy Protection Act Against Tenth Amendment Challenge-Reno v. Condon (decided January 12, 2000) States had been on a pretty good roll on federalism issues before the Rehnquist Court, but lost one this Term. The Court, in a relatively brief opinion by Chief Justice Rehnquist, held that the enactment of the Driver's Privacy Protection Act of 1994 (DPPA) was a valid exercise of Congress' Commerce Clause power. The DPPA limits the dissemination of personal information contained in state DMV records. Congress found many states were selling the personal information contained in DMV records without the driver's consent. The DPPA prohibits any state DMV, or officer, employee, or contractor thereof, from "knowingly disclosing or otherwise making available to any person or entity personal information about any individual obtained by the department in connection with a motor vehicle record." South Carolina and several other states contended that the DPPA ran afoul of the federalism principles articulated by the Court in New York v. United States (1992), and the Brady gun law case of Printz v. United States (1997). The Court disagreed, finding that the DPPA did not require states in their sovereign capacity to regulate their own citizens or commandeer state officials to assist in the enforcement of federal statutes regulating private individuals. Rather, the law regulates the states in their capacities as the owners of the databases of motor vehicle information that flows in interstate commerce. The Court agreed that South Carolina employees will be required to learn and apply the DPPA's substantive restrictions, consuming the employees' time and the state's resources, but rejected the notion that impositions of that nature are precluded by the Tenth Amendment. Unprovoked Flight Can Justify a "Terry" Stop by Police Officers-Illinois v. Wardlow (decided Jan. 12, 2000) Chicago police officers stopped and conducted a protective pat-down search for weapons of Wardlow, who had fled upon seeing a caravan of police vehicles converge on an area known for heavy narcotics trafficking. Officers discovered a handgun and arrested Wardlow. Wardlow contended that the officers did not have reasonable suspicion to make the stop under the standards set in Terry v. Ohio. The Supreme Court held that the officers' actions did not violate the Fourth Amendment. The combination of Wardlow's presence in a high crime area and his unprovoked flight, viewed through the prism of common sense judgments and inferences about human behavior, supported a reasonable, articulable suspicion of the presence of criminal activity. While individuals retain their right to ignore the police when approached and go about their business, headlong flight is the opposite of going about one's business. California's Law Limiting Access to Arrest Data Survives Facial Challenge-Los Angeles Police Department v. United Reporting Publishing Corp. (decided Dec. 7, 1999) The Supreme Court turned back a facial challenge to a California statute that barred release by the state of information about arrestees to those seeking the data for commercial, rather than journalistic or other purposes. The law was challenged by a private publishing service that provides the names and addresses of recently arrested individuals to customers, including attorneys, insurance companies, drug and alcohol counselors, and driving schools. Chief Justice Rehnquist reasoned that the case presented a facial challenge to the California statute, relying on the effect of the statute on the petitioner's customers. Lacking a threat of prosecution or cutoff of funds, the opinion concluded that the complaint did not fit within any of the precedent allowing courts to entertain facial challenges; rather, the company's customers may seek the information on their own under the statute. For purposes of assessing the propriety of a facial invalidation, the Chief Justice concluded that "what we have before us is nothing more than a governmental denial of access to information in its possession. California could decide not to give out arrestee information at all without violating the First Amendment." Although seven justices agreed that a facial attack on the law must fail, Justice Ginsburg speaking for three of her colleagues maintained that the statute should be considered as a restriction on access to government information rather than as a limitation on protected speech in any circumstance. Justice Scalia, with Justice Thomas, concurred but left open the possibility for an as-applied challenge to the statute based upon the particular circumstances of the respondent. Justice Stevens and Justice Kennedy, dissenting, believed that the case had adequately advanced an as-applied challenge, and that the statute is an unconstitutional ban on access to information "in an attempt to prohibit persons from exercising their constitutional rights to publish it in a truthful and accurate manner." New and Controversial Cases Added to Docket Since the date of the review of the highlights of the 1999-2000 Term featured in the last issue, the Supreme Court has added two other significant and provocative cases to the line-up. In Boy Scouts of America v. Dale, No. 99-699, the Court will consider whether or not a state antidiscrimination law can constitutionally bar the Boy Scouts from excluding an openly gay assistant scoutmaster. The Boy Scouts have argued that the statute unconstitutionally treads on the organization's rights to freedom of speech and association. The New Jersey Supreme Court held that enforcing New Jersey's Law Against Discrimination, N.J. Stat. Ann. § 10:5-4, in this manner did not violate the First Amendment because the scoutmaster's participation would not affect in any significant way the ability of Boy Scout members to associate with one another in pursuit of shared views since they did not associate for the purpose of disseminating the belief that homosexuality was immoral, the Boy Scouts discouraged its leaders from disseminating any views on sexual issues, and the Boy Scouts included sponsors and members who subscribed to different views in respect of homosexuality. In Stenberg v. Carhart, No. 99-830, the Court will decide whether Nebraska's statute banning "partial-birth abortions" unduly burdens a woman's right to choose whether to have an abortion. The statute defines partial-birth abortion as a "procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child . . . ." Literal application of this definition also would prohibit the most widely used second-trimester abortion method, dilation and evacuation (D&E), which involves delivery of a "substantial portion" of the fetus (usually an arm or leg) into the vagina. Because the statute would ban D&E as well as the "partial-birth" method known as dilation and extraction (D&X), the Eighth Circuit held the statute to be unconstitutional under the Supreme Court's 1992 decision in Planned Parenthood v. Casey, which held that a regulation which places "a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus" creates an undue burden and is therefore invalid. Miscellaneous Supreme Court Chatter Perceptive television watchers of President Clinton's final State of the Union address on January 27 may have noticed that no members of the Supreme Court were present in the House chamber. This marked the first time that no Justices attended since 1986, when the address had to be rescheduled due to the Challenger space shuttle tragedy. But all indications are that it was no act of political protest by the jurists. A message from the Court to congressional officials stated that "Justices of the court had planned to attend the State of the Union address but travel changes and minor illnesses have intervened. No justices will be in attendance but they do thank you for the invitation." L. Anthony Sutin is an assistant professor of law, Appalachian School of Law, Grundy, Virginia. State & Local Law News home page | Table of Contents