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Watching the Supremes

If you're the sort who's interested in the First Amendment religion clauses, you're probably the type who likes to know what the Supremes are doing with your free speech and association rights as well. Abortion law probably matters to you, too.

The Opinions

Efficient Supremes   My favorite source of Supreme Court opinions -- and the only site offering Supreme Court briefs.

Pioneering Supremes   Cornell's searchable Supremes -- the first site to make the Supremes truly accessible to tramps like us.

Official Supremes The Supremes' official site went live April 17, 2000. On the bright sides, and there are at least three of them: it's now a breeze to check out the briefing schedules; oral argument schedules; and AMAZING BUT TRUE, argument transcripts (back in the day, you had to wait for an outfit called Alderson to transcribe them, send them over to the (former) West Publishing Co., who'd take their sweet time adding them to their Top Secret proprietary archives, where you could eventually access them, for a lawyerly fee). On the dark side--OK, the slightly gray side, then--the Court's made a lot of this stuff available in .pdf format only, & if you have a 28K modem, you hate it when that happens. Still, pretty cool.

Supreme Supremes? If you're like me and I hope you're not, you haven't checked out the JURIST site in a while. Big mistake. It's grown exponentially over the past year & now has a DEEP Supremes site that looks easy to navigate. As far as I can tell, it has Snappy Links to Everything. I plan on spending a lot of time there in Y2K+1.

The Press

Pulitzer Prize Winning New York Times Supreme Court Correspondent Linda Greenhouse (as they say in the biz).

The Washinton Post's Supremes There's plenty of good stuff here from the WP staff writers, plus bonus links to the coverage from the AP's Supreme Court guy, Richard Carelli, owner of the fastest keyboard east of the Mississippi. He generally files his first story within 10 minutes of an opinion's release.

Joan Biskupic USA Today hired her away from the Washington Post, and now they mix their AP stories right in with hers. Not that there's anything wrong with that.

The 1999 Term

Freedom of Association


Boy Scouts of America v. Dale

Do the Boy Scouts have a First Amendment right to exclude gays?

Yes. The Court ruled 5-4 that applying New Jersey’s public accommodations law to require the Boy Scouts to admit James Dale would violate the Scouts’ right of expressive association.

From the majority opinion by Chief Justice Rehnquist (joined by Justices O'Connor, Scalia, Kennedy and Thomas):

As the presence of GLIB in the Boston's St. Patrick's Day parade [in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.] would have interfered with the parade organizers' choice not to propound a particular point of view, the presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy Scouts' choice not to propound a point of view contrary to its beliefs.

Dissenting: Justice Stevens (joined by Justices Ginsburg, Breyer and Souter)

Dissenting: Justice Souter (joined by Justices Ginsburg and Breyer)


California Democatic Party, et al. v. Jones

Can political parties by forced to permit non-members to vote in primary elections?

No. The Court ruled 7-2 that the burden California's "blanket primary" placed on the parties' rights of political association was both severe and unnecessary.

From the majority opinion by Justice Scalia (joined by Chief Justice Rehnquist and Justices O'Connor, Kennedy, Souter, Thomas and Breyer):

Proposition 198 forces petitioners to adulterate their candidate-selection process--the "basic function of a political party"--by opening it up to persons wholly unaffiliated with the party. Such forced association has the likely outcome--indeed, in this case the intended outcome--of changing the parties' message. We can think of no heavier burden on a political party's associational freedom.

Concurring: Justice Kennedy

Dissenting: Justice Stevens (joined by Justice Ginsburg)


Nixon v. Shrink Missouri PAC

Is the $1,000 contribution limit of Buckley v. Valeo obsolete?

No. The Court ruled 6-3 that Buckley remains authority for state limits on contributions to state political candidates and that state regulations need not be pegged to Buckley's dollars.

From the majority opinion by Justice Souter (joined by Chief Justice Rehnquist and Justices Stevens, O’Connor, Ginsburg and Breyer):

In Buckley, we specifically rejected the contention that $1,000, or any other amount, was a constitutional minimum below which legislatures could not regulate. … We asked whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate's voice below the level of notice. ...

Concurring: Justice Stevens

Concurring: Justice Breyer (joined by Justice Ginsburg)

Dissenting: Justice Kennedy

Dissenting: Justice Thomas (joined by Justice Scalia)

Freedom of Speech


Hill v. Colorado

Can Colorado make it a crime for protesters outside abortion clinics to "knowingly approach another person within eight feet of such person, unless such other person consents …"?

Yes. The Court ruled 6-3 that establishing an eight-foot "no-approach" zone within 100 feet of a health care facility does not violate the free speech rights of abortion protesters.

From the majority opinion by Justice Stevens (joined by Chief Justice Rehnquist and Justices O'Connor, Souter, Ginsburg, and Breyer):

"The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." The Colorado statute passes that test for three independent reasons. First, it is not a "regulation of speech." Rather, it is a regulation of the places where some speech may occur. Second, it was not adopted "because of disagreement with the message it conveys." … Third, the State's interests in protecting access and privacy, and providing the police with clear guidelines, are unrelated to the content of the demonstrators' speech.

Concurring: Justice Souter (joined by Justices O'Connor, Ginsburg, and Breyer)

Dissenting: Justice Scalia (joined by Justice Thomas)

Dissenting: Justice Kennedy


L.A.P.D. v. United Reporting Publishing Corp.

Does a California law limiting access to government records unconstitutionally restrict commercial speech?

No. The Court ruled 7-2 that the case was not really about restricting commercial speech at all but about access to government records, which the government has a nearly free hand to grant or to withhold.

From the majority opinion by Chief Justice Rehnquist (joined by Justices O'Connor, Scalia, Souter, Thomas, Ginsburg, and Breyer):

For purposes of assessing the propriety of a facial invalidation, 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.

Concurring: Justice Scalia (joined by Justice Thomas)

Concurring: Justice Ginsburg, (joined by Justices O'Connor, Souter, and Breyer)

Dissenting: Justice Stevens (joined by Justice Kennedy)


City of Erie v. Pap's A.M.

Can Erie, Pa., require exotic dancers to wear at least pasties and a G-string?

Yes. The Court ruled 6-3 that the ordinance could be upheld as a constitutionally permissible way of combating the "negative secondary effects" associated with nude dancing.

From the plurality opinion by Justice O'Connor (joined by Chief Justice Rehnquist and Justices Kennedy and Breyer):

This case is, in fact, similar to [United States v.] O’Brien, [Clark v.] Community for Creative Non-Violence, and Ward [v. Rock Against Racism]. The justification for the government regulation in each case prevents harmful “secondary” effects that are unrelated to the suppression of expression.

Concurring: Justice Scalia (joined by Justice Thomas)

Concurring in part and dissenting in part: Justice Souter

Dissenting: Justice Stevens (joined by Justice Ginsburg)


United States v. Playboy Entertainment Group

Can the government require cable operators to either fully scramble "adult entertainment" programs or else transmit them only late at night?

No. The Court ruled 5-4 that Section 505 of the Telecommunications Act of 1996 was not the "least restrictive means" to achieve the government's goal of shielding children from sexually explicit material.

From the majority opinion by Justice Kennedy (joined by Justices Stevens, Souter, Thomas and Ginsburg):

Even upon the assumption that the government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech.

Concurring: Justice Stevens

Concurring: Justice Thomas

Dissenting: Justice Scalia

Dissenting: Justice Breyer (joined by Chief Justice Rehnquist and Justices O'Connor and Scalia)

Freedom of Religion


Santa Fe Independent School District v. Doe

Can a school district permit "student-led, student-initiated" prayer before high school football games?

No. The Court ruled 6-3 that even when attendance is voluntary and the decision to pray is made by students, pregame prayers are not private speech, and a football game is not a public forum for unbridled free expression.

From the majority opinion by Justice Stevens (joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer):

Contrary to the District’s repeated assertions that it has adopted a “hands-off” approach to the pregame invocation, the realities of the situation plainly reveal that its policy involves both perceived and actual endorsement of religion. In this case, as we found in Lee [v. Weisman], the “degree of school involvement” makes it clear that the pregame prayers bear “the imprint of the State and thus put school-age children who objected in an untenable position.”

Dissenting: Chief Justice Rehnquist (joined by Justices Scalia and Thomas)


Mitchell v. Helms

Can religious schools participate in a government program that lends computers, software, and library books to secular schools?

Yes. The Court ruled 6-3 that Chapter 2 of the Education Consolidation and Improvement Act of 1981 is not a law respecting an establishment of religion.

From the plurality opinion by Justice Thomas (joined by Chief Justice Rehnquist and Justices Scalia and Kennedy):

Applying the two relevant Agostini [v. Felton] criteria, we see no basis for concluding that Jefferson Parish's Chapter 2 program "has the effect of advancing religion." Chapter 2 does not result in governmental indoctrination, because it determines eligibility for aid neutrally, allocates that aid based on the private choices of the parents of schoolchildren, and does not provide aid that has an impermissible content. Nor does Chapter 2 define its recipients by reference to religion.

Concurring: Justice O’Connor (joined by Justice Breyer)

Dissenting: Justice Souter (joined by Justices Stevens and Ginsburg)


Board of Regents v. Southworth

Can a public university charge its students a mandatory activity fee that helps fund student organizations that engage in ideological speech that some students find objectionable?

Yes. The Court ruled 9-0 that public universities can collect student activity fees even from students who object to particular activities, as long as the groups given the money are chosen without regard to their views.

From the majority opinion by Justice Kennedy (joined by Chief Justice Rehnquist and Justices O'Connor, Scalia, Thomas, and Ginsburg):

"The university may determine that its mission is well served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social and political subjects in their extracurricular campus life outside the lecture hall. If the university reaches this conclusion, it is entitled to impose a mandatory fee to sustain an open dialogue to these ends."

Concurring: Justice Souter (joined by Justices Stevens and Breyer)


This account will be kinda messy, but then again, so's the topic, & it hurts my head to think about it too much.

Some anti-abortion protesters have adopted the tactic of gathering outside abortion clinics to try to dissuade women from having the operation. In response, Colorado enacted a law making it a crime to "knowingly approach another person within eight feet of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such person in the public way or sidewalk area within a radius of one hundred feet from any entrance door to a health care facility." In Hill v. Colorado, the Colorado courts saw no First Amendment problems with this law, and on June 28, neither did Six Supremes. Scalia & Thomas sum it up in dissent: "The Court today concludes that a regulation requiring speakers on the public thoroughfares bordering medical facilities to speak from a distance of eight feet is "not a 'regulation of speech,' " but "a regulation of the places where some speech may occur," and that a regulation directed to only certain categories of speech (protest, education, and counseling) is not "content-based." Wuzzat mean? It means, says Justice Kennedy, also in dissent: "For the first time, the Court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk."

Earlier, Scalia and Thomas dissented from the Court's denial of certiorari in Cloer and Pastors For Life v. Gynecology Clinic Inc., a case in which the South Carolina Supreme Court held that "discourag[ing] women from patronizing [abortion clinics] with the goal of making abortion unavailable is an unlawful civil conspiracy." Scalia was particularly troubled by the South Carolina Court's statement that under South Carolina law, even lawful acts may become actionable as a civil conspiracy whenever the object is "to ruin or damage the business of another." Here the South Carolina court had reasoned that "the record is replete with evidence that appellants’ goal is to discourage women from patronizing respondent’s business with the goal of making abortion unavailable. Assuming appellants’ acts were lawful, that fact does not prevent the finding of a civil conspiracy.”

Meanwhile, in Stenberg v. Carhart, Breyer, Stevens, O'Connor, Souter, and Ginsburg voted to affirm an Eighth Circuit decision striking down a Nebraska law that banned partial-birth abortion unless it was necessary to save the mother's life. The law generally prohibited an abortion procedure "in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery." The Eighth Circuit said that language is too vague and would unconstitutionally burden a woman's constitutional right to a common abortion procedure known as "dilation and evacuation." The state of Nebraska disagreed, saying the language was clearly meant to ban only "intact dilation and extraction"--the late-term abortion procedure that Congress twice sought to outlaw in bills vetoed by President Clinton. According to the American Medical Association, a doctor performing this procedure brings the fetus feet first through the birth canal until only the head is left inside the uterus, then collapses the skull and suctions the brains out of the "living fetus to effect vaginal delivery of a dead but otherwise intact fetus."