By many measures, it was an unusual term. The Supreme Court ruled on only 75 cases, the smallest number in the modern era--and only half as many as it routinely decided a decade ago. The justices finished their work earlier than they have in 30 years. There were no blockbuster social policy cases sparked by what have been called "the culture wars": no abortion, no affirmative action, no gay rights, no major free speech or religion cases.
So what did the Supreme Court do? Rather than striking down state legislation violating the rights of individuals, it invalidated federal legislation violating the "rights" of states. And when it came to enforcing other federal statutes, the court interpreted ambiguous federal laws very narrowly, further limiting Congress's reach.
In the core areas of constitutional law and the rights of criminal defendants, long the mainstay of the docket, this term's court merely tinkered at the margins, striking down a statute here or upholding a police practice there. But none of the cases involved broad constitutional doctrines, and all were so narrowly written as to have almost no application beyond the particular case.
Take for example Saenz v. Roe, a California case testing limits on welfare for new residents. The court held that it was unconstitutional for California to discriminate against individuals based on how long they had been in the state (or where they came from). But it was careful to leave intact earlier holdings that allow states to set lower fees for in-state residents who attend their public universities, or lower in-state fees for certain types of licenses. So the California ruling isn't likely to have much impact on anything beyond welfare.
Or consider the court's invalidation of a Chicago ordinance banning loitering by gang members. The majority opinion in Chicago v. Morales did not tackle the hard questions about whether citizens have a constitutional right to congregate on public streets, or whether imposing special restrictions on people because they are suspected to be members of an organization (a "gang")--even if they cannot be shown to have committed any otherwise illegal acts--is constitutional. Instead, the court simply held that the particular ordinance gave too much discretion to police officers, and thus virtually invited Chicago to rewrite its ordinance with slightly more precision.
But this court, while apparently reluctant to write broad decisions condemning state and local actions, was only too happy to cabin Congress's power. The bulk of this term's cases fell into one of two categories: Either the court interpreted badly drafted and confusing federal statutes, or it policed the litigation process itself--often in the name of federalism.
And although those categories sound narrow and lawyerly, in fact many of the court's decisions in those areas will likely have broad ramifications. They are also evidence of both the dramatic expansion in the number of federal laws and the court's hostility toward Congress's increasing activity.
That hostility was most evident in the cases decided on the last day of the term (June 23), striking down parts of several congressional statutes as infringing upon the sovereignty of the states. These federalism cases were the latest examples of a trend that began in 1992. After first invalidating congressional attempts to deal with nuclear waste (in New York v. United States) and with guns in schoolyards (in United States v. Lopez), the court three years ago turned its attention to Congress's power to subject states to federal lawsuits.
Under a long-standing interpretation of the Constitution, states are immune from suit in federal court unless Congress expressly revokes their immunity. In Seminole Tribe v. Florida, a 1996 case involving Indian casinos, the court for the first time limited Congress's broad power to revoke states' immunity from suit. Congress is now permitted to subject the states to suit only when it passes a statute designed to enforce constitutional rights--enforcing mere federal statutory rights won't do. A year later, in City of Boerne v. Flores, the case striking down the Religious Freedom Restoration Act (RFRA), the court narrowed the scope of Congress's authority to determine what laws might be necessary to enforce constitutional rights.
Together, Seminole Tribe and City of Boerne jeopardized many federal statutes that purport to govern the states in their capacity as employers, as market participants and as service providers.
That possibility began to be realized this term. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the court held that Congress has no power to subject the states to suit for patent infringement. This ruling is likely to have serious repercussions in such areas as copyright law, where state universities--now chafing under expanded copyright protection--might decide to copy and distribute to students whatever literature they wish, ignoring the copyright laws but safe in the knowledge that they cannot be sued.
An even more serious implication of the court's ruling in the patent case is the signal it sends about other federal statutes. The court has already implicitly held that states cannot be sued for violations of the Fair Labor Standards Act--which sets the minimum wage and governs things like overtime pay. And the court has agreed to hear a case next term about the validity of Congress's attempt to make states liable for violating the Age Discrimination in Employment Act. Cases challenging the application to the states of the Americans With Disabilities Act (ADA), the Family and Medical Leave Act and other federal laws are now working their way through the federal courts. All of these laws are in danger after this term, because the court has indicated that it will allow Congress little leeway in claims that the various statutes are necessary to enforce constitutional rights.
Thus it is quite likely that states can violate federal law with impunity, because their employees cannot bring suit in federal court. Which takes us to the last federalism case of the term, where the court dropped the other shoe. What about bringing suit in state court? In Alden v. Maine, the court held that Congress has no power to subject states to suits in their own courts, either.
So state employees who have been paid less than minimum wage--and maybe those who have been discriminated against because of their age or their disability--have no recourse. They have a federal right, but no remedy, because they cannot sue their employers anywhere at all.
In keeping with its decisions limiting Congress's power under the Constitution, the court also generally interpreted Congress's handiwork as narrowly as possible. The cases arising under the ADA offer an example. In the "Tuesday Trilogy" (three separate ADA cases decided on June 22), the court held that people whose disabilities can be corrected--by wearing eyeglasses or taking medication, for example--are not "disabled" within the meaning of the statute. Thus an employer can refuse to hire someone because he or she wears glasses.
There were exceptions to the trend toward narrow interpretation, of course, but even they are not likely to have significant impact. For example, despite all the hype surrounding the court's decision (in Davis v. Monroe County Board of Education) that victims of student-to-student sexual harassment can in some cases bring suit--and despite the dissent's insistence that the sky is falling--almost no lawsuits will satisfy the very high hurdles the court set for such cases: The harassment has to be so egregious and pervasive that it interferes with education, and the school has to ignore complaints about it.
The very fact that the bulk of the court's docket involved the interpretation of federal statutes rather than broad constitutional questions tells us something interesting. The court only interprets federal statutes, not state statutes, and it generally will only hear cases raising serious disputes about the statutory language. Too many statutes written with too little care have meant that the courts must resolve the ambiguities.
And perhaps those careless congressional tentacles regulating more aspects of life with greater detail have contributed to the court's hostility toward even justifiable congressional enactments. Perhaps Congress's eagerness to enact popular statutes without much concern about either their clarity or their constitutionality has increased the court's mistrust of the federal legislature. Not since the New Deal has the Supreme Court confronted so many newly minted federal statutes--and not since the New Deal has the Supreme Court so consistently set itself, and the Constitution, against Congress.
Suzanna Sherry, who specializes in constitutional law, is the Earl R. Larson Professor of Civil Rights and Civil Liberties Law at the University of Minnesota.