Religion, Discrimination, and Federalism Are Top Issues at Supreme Court Briefing

Is the Pledge of Allegiance like a prayer? Can an employer discriminate based on age–in favor of older workers? Should a paraplegic criminal defendant have to crawl up a set of courthouse stairs when the court is not accessible to the disabled?

     Those were some of the issues on the docket last September at the Law Center’s annual Supreme Court Media Briefing, which provides journalists from major news organizations with insight into Law Center professors’ thinking on cases set to go before the Court. The briefing, sponsored by the Supreme Court Institute, gives journalists the chance to learn more about the issues involved in upcoming cases and sometimes how the Court might decide those cases–though Professor David Cole says he’s a reluctant forecaster.
     “I hesitate to predict anything after Bush v. Gore,” he joked, “when everything I predicted was wrong.”
       Cole, one of five professors on this year’s panel, discussed important First Amendment cases before the Court, including Elk Grove Unified School District v. Newdow, which received national attention when the Ninth Circuit Court of Appeals ruled that reciting the Pledge of Allegiance and its “under God” phrase in public schools is unconstitutional. Despite the conventional wisdom that similar references to God–on the nation’s currency and in the Declaration of Independence, for example–reflect more a cultural tradition than an establishment of religion, Cole suggested that the Pledge case was not so cut-and-dried. For example, Congress specifically added the words “under God” in 1954, during the height of the Cold War, to emphasize the United States’ religious foundations in contrast to nations under Communism. Given a previous decision striking down a “moment of silence” statute, Cole said, the morning Pledge recital could be considered coercive enough to violate the prohibition against the establishment of religion.
     Professor Julie O’Sullivan briefed reporters on prominent criminal cases before the Court involving Miranda warnings and the “fruit of the poisonous tree doctrine.” These addressed whether a confession first obtained in violation of a suspect’s Miranda rights but properly obtained after a subsequent questioning should be admissible. Although the Court has held such “sequential confessions,” if voluntary, to be admissible, O’Sullivan observed that to uphold them in a case in which police intentionally had not read the suspect his Miranda rights so as to secure that first confession would “actually encourage Miranda violations.”
       Professor Michael Gottesman discussed employment-related cases, including General Dynamics v. Cline, in which a group of younger employees alleged reverse discrimination under the Age Discrimination Act when a company and a union negotiated a health benefit available only to those 50 and older. Although most federal courts previously have ruled such benefits do not violate the act because it is designed to prevent discrimination against older people, Gottesman said, in Cline the Sixth Circuit ruled that despite Congress’ intent, it was bound by the act’s literal prohibition against any age discrimination.
     Former Supreme Court Justice Brennan’s comment that “a thing may be within the letter of the law but not within the purpose of the law” might apply to this case, Gottesman said. He added that a finding for the plaintiffs in Cline could put at risk a variety of established benefits programs.
        Among the federalism-related cases analyzed by Professor Nina Pillard was Tennessee v. Lane, which addressed whether Congress can impose the Americans with Disabilities Act on states. Whereas a previous case had held the ADA could not apply to states in employment decisions, Lane focused on whether the Act’s prohibition of disability-based discrimination in the services, programs, or activities of a public entity could be imposed on the states.

NewYork Times Supreme Court correspondent Linda Greenhouse and Law Center Professor Richard Lazarus chat following the annual Supreme Court Press Briefing.