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COURT REPORT with Charles Bierbauer

An interesting term that keeps getting better

April 28, 2000
Web posted at: 9:11 a.m. EDT (1311 GMT)

WASHINGTON (CNN)--The Supreme Court wrapped up its argument calendar by hearing from Branch Davidians from Waco, a Nebraska abortionist and a gay Boy Scout leader from New Jersey. Now, the justices can catch their breath.

The end of the term is now just a couple dozen potentially culture-shocking decisions away.

Justice Ruth Bader Ginsburg, a few months ago, said this was shaping up as the most interesting term since she joined the court in 1993. And it just kept getting better.

The 1999-2000 term is making a mark for the breadth of issues the court is addressing, more than for any thematic measure. Consider some intriguing, though perhaps coincidental, juxtapositions in the court's rulings so far:

• The First Amendment allows the University of Wisconsin to collect student activity fees and distribute them to socialists, gays, greens--among others--over the objection of religiously conservative students who object to having their fees support groups they find objectionable.

Police Search
Though the Fourth Amendment allows police to pursue an individual who runs from authorities, it does not authorize them to stop and search an individual based on an anonymous phone tip.  

The First Amendment allows the city of Erie, Pa. to ban nude dancing--and other public nudity. Requiring dancers to wear at least pasties and a g-string does not infringe on their freedom of expression even if it also probably does not curb the "secondary effects"--crime and prostitution--linked to nude dancing clubs.

• The Fourth Amendment allows police to chase, stop and search an individual who runs at the sight of police. Flight itself arouses a reasonable suspicion for police to pursue, the justices ruled. The Fourth Amendment does not allow police to stop and search an individual on the basis of an anonymous phone tip. Too hard to verify.

Nor does it allow a law enforcement officer to squeeze or "manipulate" a bus passenger's luggage to see if it contains contraband. The passenger, who happened to be carrying a "brick" of methamphetamine, is entitled to a presumption of privacy. Dissenting Justices Steven Breyer and Antonin Scalia suggest if you want to carry contraband, use hard-sided luggage.

•The Tenth and Eleventh Amendments sometimes protect state interests over the federal government's and sometimes they don't.

Train and Car Crash
States where railroad crossing signs are paid for by the federal government cannot hold railway companies responsible in the event of an accident.  

The court told Tennessee last week that states could not hold railroads liable in accidents where railway grade crossing signs are paid for and approved under a federal program. In a series of cases, the justices have found federal preemptions trump state claims.

Washington state was denied the right to set its own rules for oil tankers to protect its waters against oil spills. International commerce, the justices ruled, is a federal matter requiring uniform regulations.

Massachusetts is awaiting word on whether the sanctions in its Burma Trade Act also tread on federal prerogatives to set foreign policy. Massachusetts passed the act to protest human rights violations in the country now known as Myanmar.

On the other hand, the Court rejected age discrimination claims against the state of Florida by a group of Florida State University professors. The justices ruled the state had no history of discrimination as an employer and was immune from such suits.

The Rehnquist court has unquestionable conservative leanings, but it is also a pragmatic court. Its shifting middle--Justices Sandra Day O'Connor and Anthony M. Kennedy--are the unmistakeable keys to most narrow decisions, especially the volatile social issues where public emotions peak as they will in the court's final arguments of the term.

• The Branch Davidian case -- Castillo v. U.S. -- is a technical matter of sentencing guidelines when "machine guns" are involved in a crime. Is a jury or judge to decide if an extended prison term is warranted? It's the Waco horror that raises the case's profile. The case centers on the deaths of federal agents in the initial assault on the Waco compound, not the Branch Davidian deaths at the end of the siege. Coincidentally and perhaps unfortunately, the case comes before the justices within days of the April 19 tragedy.

• Nebraska's attempt to ban certain abortion procedures is the court's first revisit in nearly a decade to its landmark Roe v. Wade decision assuring a woman of her right to choose abortion. Abortion opponents hope to narrow those options by banning a procedure they call "partial birth abortion." Dr. LeRoy Carhart, a retired Air Force surgeon who is the only doctor performing mid-term abortions in Nebraska, says the ban could make 98 percent of such procedures criminal. Some 30 states with similar laws are watching this case closely.

Gay Boy Scout
The Supreme Court will soon rule whether the Boy Scouts of America can dismiss a gay scout leader.  

• New Jersey's Supreme Court ruled the state's Law Against Discrimination blocks the Boy Scouts of America from dismissing an assistant scoutmaster and Eagle Scout who is gay. The Scouts claim a First Amendment right of freedom of association. Gay rights groups themselves often make the same freedom of association claim, but not in this case.

The justices should rule in all these cases by the end of June.

The court goes online
May 20, 2000


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