United States Supreme Court's 2006-2007 Term, Civil Rights and Civil Liberties, and a New Direction

AuthorCraig L. Jackson
PositionProfessor of Law, Thurgood Marshall School of Law, Texas Southern University
The Supreme Court has created a plot line that it has followed for
several years with civil liberties and civil rights cases involving race,
culture (and the accompanying culture wars), presidential power in times
of controversial war, federalism, and reproductive rights. When these
decisions are issued, they are met by alarm, panic, deep relief and
reflection, cries of the end of eras, and punditry galore. Many of the more
important or controversial cases, particularly in the areas of civil rights and
civil liberties are released near the end of the term. Whether this amounts
to heightening of the drama on the part of a skillful court/dramatist, or just
a coincident result of arbitrary scheduling, or simply that the important
cases are also the hardest cases and require more time for resolution, is
anybody’s guess. Nonetheless, the result of this dramatic plotting is that
several, indeed most of this year’s most anticipated cases addressing the
variety of rights in the Bill of Rights remained undecided as of mid-June.1
As a result, the final two weeks presented court watchers with almost a full
term of drama as First Amendment and Equal Protection cases were
decided both in rather controversial fashions.2
The list of cases here reflect what are likely among the most important
civil rights/civil liberties cases based on a survey of legal commentary on
the 2006–2007 term and commentary on the various subject matters. The
Copyright © 2008, Craig L. Jackson.
Professor of Law, Thurgood Marshall School of Law, Texas Southern University. An
earlier version of this Article was included as part of the curriculum for a Continuing Legal
Education course sponsored by the Civil Liberties Section of the State Bar of Texas, which
was held on May 23–24, 2007, in Dallas, Texas.
1 See, e.g., Hein v. Freedom from Religion Found., Inc., 127 S. Ct. 2553 (2007) (First
Amendment case); Morse v. Frederick, 127 S. Ct. 2618 (2007) (First Amendment
case); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738
(2007) (Fourteenth Amendment case). See also 2006 Term Opinions of the Court,
http://www.supremecourtus.gov/opinions/06slipopinion.html (last visited July 1, 2008).
2 See, e.g., Parents Involved, 127 S. Ct. at 2746, 2768 (decided by a 5-4 vote); Morse,
127 S. Ct. at 2622, 2629, 2636, 2638 (decided by a 6-3 vote); Hein, 127 S. Ct. at 2559
(decided by 3 member plurality).
cases reviewed here include several criminal justice cases involving issues
from mitigation, habeas corpus, and penalties for crime classifications.
The criminal justice cases implicate rights under the Fourth,3 Fifth,4 Sixth,5
and Eighth6 Amendments.7 Also covered here are decisions on the First
3 U.S. CONST. amend. IV states that
[t]he right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
4 U.S. CONST. amend. V states that
[n]o person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any person be subject
for the same offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use, without just
5 U.S. CONST. amend. VI states that
[i]n all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defence.
6 U.S. CONST. amend. VIII states that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.”
7 Most of the criminal cases originated in the state court systems. The Bill of Rights
amendments to the Constitution were originally not applicable to the states. See Barron v.
Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833). Most of the amendments in Bill of Rights
became applicable to the states via the Fourteenth Amendment’s Due Process Clause which
was added to the Constitution following the Civil War. Under the Incorporation Doctrine,
the liberty interest protected by the Due Process Clause is said to have “incorporated” most
of the Bill of Rights into the Fourteenth, which is applicable to the states. See Duncan v.
Louisiana, 391 U.S. 145 (1968). The criminal rights provisions not incorporated into the
Fourteenth Amendment and accordingly not applicable to the states are the Fifth
Amendment8 and the Equal Protection Clause9 of the Fourteenth
Amendment.10 It is an understatement to say that the Court did not
suddenly become possessed with the ghosts of the 1960s Warren Court—
far from it. In fact, using a loose scale and personal scale to determine
liberal versus conservative decisions, the Court came up conservative in
twelve of the fifteen cases included in this Paper, and liberal in only three.
Most of the cases reviewed are criminal justice cases; several dealt with
federal habeas corpus under the Antiterrorism and Effective Death Penalty
Act of 1996,11 which was an issue in six of the cases heard so far and
reviewed in this Paper. And it is fair to say that the conservative lead,
though frequently the result of 5-4 decisions, was in a few instances the
product of odd voting combinations, as was also the case in one of the
liberal outcomes. Unanimity, formerly a major goal of the Chief Justice,
was reached in only a few of these Bill of Rights decisions, and the spirit
of uniformity was clearly undermined in one of the Chief’s opinions, a
scathing (and unnecessarily so) rebuke of a foundational value in race and
education jurisprudence.12
Amendment’s grand jury provision and the Eighth Amendment’s prohibition against
excessive bail.
8 U.S. CONST. amend. I states that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.”
9 The equal protection case, Parents Involved in Community Schools v. Seattle School
District, 127 S. Ct. 2738 (2007), discussed infra Part VI, was the last case decided this term.
Though not technically a subject falling under the Bill of Rights, the Court has recognized
that the Due Process Clause of the Fifth Amendment includes equal protection values in
cases dealing the federal government. Because of the similarity of the issues involved in
Bill of Rights cases and the Fourteenth Amendment, the school assignment case was
included in these materials.
10 U.S. CONST. amend. XIV § 1 states that
[a]ll persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
11 Pub. L. No. 104-132, 110 Stat. 1214 (1996).
12 See discussion infra Part VI.

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