SUPREME COURT WATCH By L. Anthony Sutin The spotlight has begun to fade from Bush v. Gore and the Supreme Court's controversial role in resolving the 2000 presidential election. Many other significant decisions have been issued during the October 2000 Term, with a fraction of the fanfare, that will have more enduring impact on constitutional law. As the Term (and quite possibly the service of one or more of the current Justices) nears a close, it's time for an aerial view of some of these decisions of particular relevance to state and local governments. Federalism The Court's February 21 decision in University of Alabama v. Garrett, No. 99-1240, continued the parade of the recent decisions in Seminole Tribe, Alden, and Kimel that fortifies a constitutional sovereign immunity enjoyed by states from suits asserted under acts of Congress. In Garrett, two Alabama state employees sued the state under the Americans with Disabilities Act, alleging workplace discrimination on account of their illnesses. The Eleventh Circuit upheld the plaintiffs' right to sue the state. Alabama argued that Congress exceeded its remedial powers under section 5 of the Fourteenth Amendment because there was no showing of pervasive discrimination by the states against the disabled. ADA supporters pointed to the years of consideration given to this measure by Congress and a beefy factual record of discrimination problems. Despite a vigorous defense of the law by the Clinton Administration, a 5-4 majority of the Court found lacking the dual prerequisites of state discrimination violative of the Fourteenth Amendment and a remedy congruent and proportional to the alleged violation. Justice Breyer, in dissent, concluded that "Congress reasonably could have concluded that the remedy before us constitutes an 'appropriate' way to enforce this basic equal protection requirement." In Solid Waste Agency v. Army Corps of Engineers, No. 99-1178, the Court avoided reaching a significant Commerce Clause question. The specific issue in the case was whether, under the Clean Water Act, the U.S. Army Corps of Engineers may assert jurisdiction over isolated intrastate, nonnavigable waters solely because those waters are habitat for migratory birds. The Corps granted a group of Illinois municipalities permission to begin draining lakes on their site, but changed its mind when it learned that many migratory birds had been observed. The Corps invoked the "migratory bird rule," which makes the lakes "waters of the United States" and gives the Corps jurisdiction under section 404 of the Clean Water Act to protect species of birds that make their homes on navigable waters. The Seventh Circuit held that under the "cumulative impact doctrine" analysis of the Commerce Clause, Congress enjoyed the power to grant the Corps jurisdiction because the aggregate effect of the in-state activity has a substantial impact on interstate commerce. The court noted the significant expenditures made by birdwatchers and hunters to pursue their hobbies. In seeking Supreme Court review, the petitioners argued that the Corps' rationale "would justify federal regulation not just of all waters but of all human activity." In a 5-4 opinion issued on January 9, the Court resolved the case on statutory interpretation grounds and held that the migratory bird rule exceeded the authority granted by Congress to the Corps of Engineers under the Clean Water Act. Chief Justice Rehnquist's opinion did underscore that a contrary conclusion would pose "significant constitutional and federalism questions." Due Process/State Action In Lujan v. G & G Fire Sprinklers, Inc., No. 00-152, the California Labor Code authorized the state to withhold payment due to a contractor for noncompliance by a subcontractor with provisions of the California Code. The law in turn authorized the contractor to withhold payment to a subcontractor on the same grounds. A subcontractor claimed that the California state agency violated due process by failing to provide notice or an explanation for issuing three notices against it for projects on which they had worked as a subcontractor. The agency withheld payment from the prime contractors, who then withheld payment from the subcontractor. The court below held that the state violated the due process rights of the subcontractor by failing to provide prior notice or a hearing before withholding funds. A unanimous April 17, 2001 opinion by Chief Justice Rehnquist concluded the opportunity under state law for the subcontractor to pursue its claim for payment under its contracts in state court was sufficient to prevent a deprivation of due process. The Court found a nominally private statewide association to be a state actor in Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, No. 99-0901. The Tennessee Secondary Schools Athletic Association establishes and enforces all of the rules by which public and private high school sports' teams compete. The Association is nominally a private organization, but 84 percent of its members are public schools. Association staff may join the state retirement system. The Association sanctioned the Brentwood Academy for violations of recruiting rules. The Academy sued for violation of First Amendment rights. On February 20, the Court (in a 5-4 decision) concluded that the pervasive level of "entwinement" of public school officials with the Association justified a finding that the actions of the Association were attributable to the state. Justice Souter wrote, "In sum, to the extent of 84% of its membership, the Association is an organization of public schools represented by their officials acting in their official capacity to provide an integral element of secondary public schooling." Justice Thomas, writing for the dissent, countered that this conclusion "not only extends state-action doctrine beyond its permissible limits but also encroaches upon the realm of individual freedom that the doctrine was meant to protect." The dissent also raised the prospect that other organizations that foster activities and sponsor extracurricular competitions in public schools could be swept up into state actor status. Search and Seizure In Illinois v. McArthur, No. 99-1132, the Court rejected a Fourth Amendment challenge in a case in which police officers, believing a residence to contain illegal drugs, secured the premises from the outside for approximately two hours while awaiting a search warrant. During this time, the police prevented the residents from re-entering unless accompanied by a police officer. The February 20 8-1 opinion by Justice Breyer concluded that the police actions were reasonable because they were tailored to the need at hand, and limited in time and scope. The police had probable cause to believe that drugs were in the trailer, and good cause to believe that if not restrained one of the residents would destroy the drugs before they could return with a warrant. The police detained the resident no longer than necessary to get the warrant, and obtained the warrant as quickly as possible. The March 21 ruling in Ferguson v. Charleston, S.C., No. 99-936, invalidated a public hospital's policy of drug-testing certain pregnant women and informing the police of positive cocaine results. The drug test was administered to women who showed certain indicia of cocaine use. Under the policy, several women were arrested directly from their hospital beds. Although the policy has since been discontinued, its defenders contended that it falls within the "special needs" exception of the Fourth Amendment. In an opinion written by Justice Stevens for a five-member majority, the Court ruled that the drug test was an unreasonable search absent the patient's consent. The "special needs" asserted to justify the program could not be separated from the state's general law enforcement interest and the invasion of privacy here was far more substantial than in other cases in the small category of constitutionally permissible suspicionless searches. In dissent, Justice Scalia argued that prior cases establish that material (here, urine) "voluntarily entrusted to someone else can be given by that person to the police, and used for whatever evidence it may contain" without violating the Fourth Amendment. In a Fourth Amendment decision going the other way, the November 28, 2000 decision in Indianapolis v. Edmond, No. 99-1030, held that law enforcement officers may not conduct suspicionless roadblocks for the purpose of investigating drug offenses (versus being permissible only to pursue noncriminal regulatory or public safety goals). In this case, all vehicles passing through a designated "narcotics checkpoint" were stopped, and drivers were asked to produce their licenses and registrations. Officers would look to see if the driver was impaired, look into the car for evidence of drug offenses, and walk a drug-sniffing dog around the car. While the Court has upheld roadblocks that stop all travelers without a particularized suspicion of criminal activity, these cases have been limited to safety or regulatory concerns. In a 6-3 decision, the Court reinforced its consistent rejection of checkpoint programs whose primary purpose was to detect evidence of ordinary criminal wrongdoing. The gravity of the threat of the drug trade did not provide sufficient justification to carve a new exception "to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends." Voting The fourth trip to the Supreme Court of a challenge to the configuration of the 12th Congressional District in North Carolina may prove to be the last. The Supreme Court rejected the lower court's conclusion that the boundaries of the district were impermissibly drawn. Hunt v. Cromartie, Nos. 99-1864 and 1865. Most recently, a three-judge court found after trial that the 12th District was a "racial archipelago," and the product of using race as the predominant factor in its creation with no compelling interest presence to justify that use. On April 18, the Court found those findings to be clearly erroneous in a 5-4 decision authored by Justice Breyer. Based upon a searching review of the lower court record, the Breyer opinion challenged the lower court's focus on voting registration (rather than voting behavior) as the appropriate basis of a legislature's drawing of boundaries. The Court noted that white registered Democrats "cross-over" to vote Republican much more often than do African-Americans and thus a legislature trying to secure a safe Democratic seat by placing reliable Democratic precincts within a district may produce a district containing more heavily African-American precincts for political, not racial, reasons. The Court also found that the testimony of the plaintiff's expert witness did not adequately support the conclusions drawn by the court. Supporters of term limits tried again-and lost again-in Cook v. Gralike, No. 99-929. A Missouri constitutional amendment required a legend of "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" to accompany the ballot listing of any incumbent who failed to vote in favor of such amendments and any non-incumbent who refused to pledge support for such an amendment. The Court found the Missouri constitutional provision was not authorized by the Tenth Amendment, rejecting the state's contention that it was an exercise of a reserved power to give binding instructions to elected representatives. The Court cited historical evidence that the First Congress declined a proposal to add a constitutional amendment recognizing the right of the people "to instruct their representatives." The Court also rejected Missouri's argument that this measure was a permissible exercise of the state's power to regulate the "Times, Places and Manner" of congressional elections. The opinion by Justice Stevens saw the Missouri measure not as a procedural regulation but as an attempt to favor certain categories of candidates and to disfavor others. Court Chatter Speculation continues that Chief Justice Rehnquist may decide to step down after the conclusion of this Term. Justice O'Connor recently sought to douse rumors that she, too, was planning an imminent retirement. Given the even division of the U.S. Senate that must confirm a nominee, plus the uncertain health of South Carolina Republican Strom Thurmond, the buzz about a possible successor centers on the "confirmable." At the top of the confirmable-meter are sitting members of the U.S. Senate, who are unlikely to be opposed by a significant number of their colleagues, regardless of political stripe. And at the top of this list of late is Utah Republican and Senate Judiciary Chair (and gospel songwriter) Orrin G. Hatch. Also drawing a few mentions is Arizona Republican Jon Kyl. Slightly less "safe" but also gathering significant attention is White House Counsel and former Texas Supreme Court Justice Alberto Gonzales. Given the closeness of the Senate and early interparty skirmishes on lower court nominees, less attention is being given to more pronounced conservative potential nominees, such as Judge Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit. L. Anthony Sutin is dean and associate professor of law at the Appalachian School of Law in Grundy, Virginia.