 You're watching FJTN, the Federal Judicial Television Network. The Federal Judicial Center presents Supreme Court 2000-2001, The Term and Review, an FJTN program for judges, staff attorneys and law clerks. Now from the television studios of the Federal Judicial Center in Washington, D.C., your moderator, Russell Wheeler. Welcome to the Federal Judicial Center's fifth annual review of the Supreme Court's October term. We'll analyze the courts holding in 45 of this term's cases, cases that we think are most likely to affect litigation in the federal courts. We'll look first at civil rights, civil liberties and elections, second at criminal law and procedure, sentencing and incarceration, prisoner litigation and alien rights, and third at separation of powers, federalism, habeas corpus and commercial litigation. Each part will last about 35 minutes. We'll summarize the holdings and for some cases we'll suggest and occasionally disagree about the decisions likely impact. Our goal is an overview of the term, not detailed analyses of individual cases. What was most important about the term? It's hard to say at this point, but there were some areas of special interest, elections for example, commercial arbitration, search and seizure and habeas corpus, habeas corpus generally and specifically as to aliens rights. Another aspect of the term was a number of cases dealing with the relation of law and technology. For example, cellular phones make it easier to communicate and easier to intercept communications. Even if it all does the First Amendment protect press dissemination of illegally intercepted material. Technology such as optical scanning, while expensive, may provide election officials a more accurate count of votes than traditional methods. Does the use of more sophisticated technology and only part of a jurisdiction violate the Equal Protection Clause? Heat sensing technology gives people on the outside of a building some idea of what's going on inside. When police use that technology on a house, do they need a warrant? Electronic databases permit easy dissemination of articles that appeared previously in newspapers and magazines to publishers and fringe authors' copyrights by placing them without permission in online or CD-ROM databases. And finally, does the use of an electric cart by a handicapped golfer fundamentally alter the game of golf? Over the next two hours, we'll describe these cases and others as well as try to put the term into some context. We've made two changes in this year's program. First, for some of the cases, we produce brief video summaries narrated by the Center's Robin Rowland. Please use the one-page evaluation form in your written materials to let us know what you think of these summaries, as well as any other aspect of the program. Your comments help us identify ways to improve next year's edition. Second, in response to your comments on last year's program, your materials have summaries of all 85 of this term's cases that were decided with full opinion or at least with a substantive purcurium opinion. The 45 cases that we'll discuss are listed first. In the order, we'll discuss them. The materials also include brief biographies of the three law professors who will summarize and comment on the cases. Senator Evan Sen Lee of the University of California, Hastings College of the Law, helped us prepare for this program but was ill and unable to join us. Let's turn now to part one. We'll start with four cases involving the First Amendment's religion and speech clauses and one involving the Fifth Amendment's taking clause. Here to discuss them are Irwin Chemerinsky of the University of Southern California School of Law and Ernest Young of the University of Texas School of Law. This is a real potpourri of First Amendment cases. There was one religion case that Steve and Darlene Fournier brought in Milford, New York. They started a good news club, it's a whole network of clubs around the world for young children and wanted to use the school building to meet. Although the school had a policy, like in other groups that provided moral instruction to meet there, they denied the good news club access to the school. What was unexpected or what was expected in this decision? There wasn't necessarily anything that surprising but important I think. The majority plainly thought this case was a rerun of Lambs Chapel in 1993 decision which held that when a public school opens up its facilities to private groups after hours they can't exclude religious groups. What's important in the good news case is that the majority saw two potentially distinguishing characteristics as unimportant. First of all, the club's activities involved not just religious discussion of secular issues but also religious worship unlike Lambs Chapel. Then second, the children here were much younger and therefore much more impressionable than the children involved in the court's previous cases. The first point suggests a kind of a continuing effort by the court to bring its religious speech cases more into line with its free speech jurisprudence generally. Stephen's argues in dissent and good news for instance that the Constitution should distinguish between impermissible religious worship or religious proselytization on the one hand and permissible religious discussion on the other hand but it's hard to imagine that the court would tolerate that kind of fine distinction in any other non-religious free speech context. The second point suggests that the court's insistence that public school is special for establishment clause purposes because of the presence of young children but that insistence may be weakening and that would be an important development to the extent that the court's public school prayer cases are based on that distinction. Well, thanks, Ernie. Ernie, let me pick up on a point there. Given the facts in this case, and they're not real clear, but given the facts in this case what would it take for a program not to survive establishment clause? You had kids as Ernie said are young six to twelve. They met in the school more than just intellectual discussion of religion and they not only met in the school but their meetings bunted right up against the end of the school day so what would not survive? I think there's still the basis for an as applied challenge to religious groups use of school facilities particularly if there's some evidence of school coercion or government symbolic endorsement of religion. Some factors that might distinguish this case be the basis for an as applied challenge or as if teachers participate in the program. The announcements are made over the school public address system. If, for example, it's held during the school day rather than after school is in this case. One problem though is that given the nature of the court's endorsement test, it may be hard for any restriction on religious speech to survive near a tailoring. After all, the school can always put a disclaimer up that they're not backing the religious speech and that may always be the least restrictive alternative. But it's uncertain this area whether that would be enough. There's never been a Supreme Court case dealing with those kinds of alternatives would make it permissible under the First Amendment. If otherwise it would be unconstitutional. So we'll see more litigation there. Definitely. Let me stay with you Erwin and refer to one of the cases we mentioned in the introduction. This is the case that Gloria Bartnicki and Anthony Cain brought against a radio broadcaster. They had some cell phone conversations about union disputes they were involved in. They were two union officials. Talked about blowing up a porch. Well, somebody got a copy of this conversation and gave it to Fred Voper. He played it on the radio. They sued him under the civil damage provisions of federal and state law. And Justice Stevens in an opinion had some sympathy for the notion of privacy for these conversations, but he said the First Amendment overwrote it at least here. He emphasized two factors. One is that the tape concerned a matter of public importance. And second, that the media played no role in the illegal interception or recording of the conversation. Justice Breyer wrote a separate concurring opinion joined by Justice O'Connor emphasizing this is a very narrow decision because it did concern a matter of public importance and because the media done nothing illegal in intercepting recording the conversation. The Supreme Court in past cases, like Cox Broadcasting v. Cohn in 1975, Blood of Starvers, BGF in 1989, it said the media can't be held liable if it lawfully obtains information and then truthfully reports it. But those cases involved the media gaining information from government records. I think this case is significant because the information came from non-government sources and there was some illegal activity, just not by the media. Given what you said, is there a message to the press here, or at least the overly aggressive press? I mean, what would happen to Voper himself at Interceptor to the Communication? I think the clear implication from Justice Stevens' decision is if the media participates in illegal interception or recording, then they don't get First Amendment protection. First Amendment protection depends on it being both a matter of public importance and the media not doing anything illegal in the interception or recording. Okay, thanks very much, Erwin. Ernie, another kind of free speech case involved the Legal Services Corporation this term. Congress has placed a variety of restrictions on grantees of legal service corporation funds, no-class actions, for example. It's also told them, and that's an issue in this Falesco's case, can't represent welfare clients to the extent that representing them would involve advocating a change in the law. Now, would you tell us what the court decided about this case and whether this is really about free speech or is this about the independent judicial process and independent bar? Well, the court held that the restriction on challenges to welfare reform are unconstitutional. The case could have been about viewpoint discrimination, but it wound up being about the special status of lawyers. It's fairly well settled that the government may discriminate on the basis of viewpoint when it's promulgating its own message, as in Russ versus Sullivan, for instance. But here, the LSC program was designed to facilitate private speech of indigent clients. So the fact that this particular restriction affected only one side of the welfare debate could have been dispositive. Now, what makes the case a little bit confusing is that the court threw in some extra language about to the effect that here the government seeks to take an existing medium of expression, courts and lawyers, and distort it in ways that distort its usual functioning. The idea seems to be that when government chooses to subsidize speech through particular kinds of persons or institutions, courts, lawyers, or public universities, for instance, the government is not free to restrict the speech that is subsidized to a more narrow range of subjects or topics in a way that it might otherwise be using other medium. But it's hard to say why that would be true or how far that principle goes. To what extent can this case be limited to challenges to welfare regulations? There are other restrictions, and with those received legal service money can do, they can't bring class action suits, they can't challenge abortion laws, they can't represent aliens. Are these regulations also now vulnerable? It really depends on how important the viewpoint discrimination aspect of the case really was to the court. Those other restrictions on LSC grantees tend to be more defensively viewpoint neutral. Ernie, we'll come back to you in a little while to talk about this next case involving the Laurel Art Tobacco suit, because there's a preemption aspect of it, and we'll get to that in part three. But Erwin, I want to ask you now about the portions of these regulations issued by the Massachusetts Attorney General governing not only the sale but the advertising of tobacco that were not preempted by federal law. There's some commercial speech lessons here for federal judges. I think there's several. The Supreme Court struck down the restriction on cigar and smokeless tobacco advertising as violating the First Amendment. And I think there's three important lessons for federal courts here. One is the Supreme Court clearly said that the central huts and test is to be used when federal courts consider First Amendment challenges to government regulation of commercial speech. Second, I think the court has made clear that it's not going to allow the government to regulate advertising as a way of discouraging what's perceived as harmful behavior. In the last few years, we've seen cases before the court where they struck down restriction on liquor ads, gambling ads, and now tobacco ads. It seems the court's clearly saying the government can't try to control behavior by restricting advertising. And third, I think the court made clear here that the government can't regulate speech for adults so as to protect children. I think this can be important especially as courts consider restrictions on sexual speech. Okay, a variety of implications then. Erwin, let's move from the First Amendment to the Fifth Amendment in a case which got a fair amount of attention. Anthony Palazzola came into a title to some coastal lands in Rhode Island. He had been the sole shareholder in a corporation that failed. When he took title, there were in place in Rhode Island regulations on the wetlands. He tried to have them developed and the Rhode Island authority said, no, citing these regulations. And he said, well, that's a taking. The Rhode Island Supreme Court, the Rhode Island Supreme Court said, it's not a taking. They were in place when you got title. The Supreme Court didn't see it that way. What's for federal judges anyway, the impact here? I think the impact is this lessens the tools that federal judges have to be able to dismiss takings claims. There were three distinct parts to the court's holding here. First, the court found that the claim was right for review. The Supreme Court reaffirmed that in order for a takings claim to be right, there's to first be a ruling by the state administrative agency. Now, in this case, Palazzola had never applied for a permit for this specific development. But the Supreme Court said, because there was no doubt as to how the agency would rule, it was still right for review. The court said it was no doubt in light of the language of the regulations and the past disposition requests. Second, and I think most important, the court said, that a person can bring a takings class challenge even if the regulations were in place at the time of the acquisition of the property. Justice Kennedy said, there's no expiration date on the takings clause. But third, the court here found that there wasn't evidence of a taking. A regulatory taking generally requires a showing that there's no reasonable, economically viable use of the property left. The court said he still had use of the property, an 18-parcel aspect of it worth $200,000. And the court said he thus couldn't show, on these facts, a regulatory taking. You suspect it'll be in environmental areas, though, that we see most of the impact of this decision? Definitely. And I think what you're going to see is that landowners bring many more challenges to environmental regulations based on this case. And again, I think the real significance is people could even buy a piece of property with the whole purpose of challenging regulations, particularly environmental regulations. So in creating litigation strategies for various public interest groups? Absolutely. Thanks very much, Erwin. Thank you, Ernie. And we'll be back in a moment to consider some civil rights cases. Now we'll turn to six cases involving application of various civil rights statutes to discuss them are Lori Levinson of Loyola Law School in Los Angeles and Ernie Young. And Ernie, we'll start with you. And the case from Tennessee, you were mentioning that in most states, lies in Tennessee, there's an athletic association that regulates interschlastic competition among public and private schools. Brentwood Academy sued the Tennessee Secondary Athletic Association over a fine, sued them under Section 1983. And the association said, well, hold on. We're not a state actor here. The court held otherwise. What do they add to the criteria for defining state action in this Brentwood case? State action has always been a pretty flexible concept. Here, the majority applies what the dissent says is an even newer and more flexible version of that. And that's the entwinement approach. Basically, entwinement is about looking at as many factors as you can that suggest a relationship between the state and the actor. Here, the key factors are that the public schools make up 84% of the association's membership. The association is run by public school officials who are serving in their official capacity. State board of education officials serve on the association's board. The association employees are even eligible for membership in the state teacher retirement system. Entwinement also seems to be something of a balancing test and that the court also inquires whether there are special factors that would make it unfair to find that the association is a state actor. Here, they don't find any such factors. The implications are that the state action doctrine may be even looser than it was before. The approach seems to be now think of every fact that suggests state action, every fact that might suggest against state action, and then roll the dice. And they rolled it here in favor of Brentwood. They did. Thanks. Laurie, we thought we'd have a state action case in this suit by G.G. Sprinkler's against Arthur Lujan, the California Labor Commissioner. This involves the state wage prevailing laws, prevailing wage laws for public works contracts in which the primary contractor payments can be withheld if they don't pay prevailing wages. And the primary contractor can withhold from the subcontractor. And we thought we might learn whether or not that withholding without a hearing by the primary contractor was actionable state action, as it were. But that's not where the case came out. That's right. The court did not focus on the state action question. What the court focused on was the due process question and said there was enough due process here. Because in fact, the subcontractors, even if they didn't get a hearing before the payments were withheld, they had the normal state judicial process to use. And the court emphasized that due process is not an inflexible concept. Using the judicial process was enough to satisfy due process. And so that case wasn't too much trouble for the court. Not at all. Another case from California, again, was nine to nothing. This involved this, came out of an incident when Vice President Gore was speaking at the Presidio. And Donald Saucer, a military policeman, arrested Elliot Katz. And Katz said he roughed him up and brought a Bivens action. Saucer responded that this should go off on summary judgment because I have qualified immunity. Now, what's the instruction that Justice Kennedy's opinion gives to the district courts in that sort of circumstance? What the court said is on the issue of qualified immunity in excessive force cases, it is not the same question, that it is a two-step process. Because in fact, if the defendant has qualified immunity, he should never have to stand trial in the first place. Even though both issues deal with the question of whether there was a reasonable use of force. So what the court said is that the first thing the district court has to look at is the qualified immunity on the summary judgment motion. And to do so, the court has to look at whether the law was settled at the time on the issue. If the law was not settled, then there's a good argument that there was qualified immunity and this issue never gets to the jury. Can you give us an example how this might play out? Yes, it is helpful to think of an example. And you might want to think about the dog bite cases. In many jurisdictions, the question of whether officers can use dogs and the dog bites for their law enforcement purposes is not well-settled. In such a case, you can imagine that you could have a case that went to the jury and the jury would say that's an excessive use of force. What the court here is saying is that maybe that case should never get to the jury. That before that, the district court has to decide, well, was the law on dog bites in that jurisdiction well-settled? If it wasn't, there's qualified immunity. It doesn't go to the jury. Okay, thanks very much. Let's pick up another case, one that could have far-reaching consequences. This is the suit by some residents in Alabama, Martha Sandoval and others against the state for administering driver's license tests in English only. And the suit that they brought against the Alabama authorities was brought under section 602 of Title VI of the Civil Rights Act, clearly an implied right of action in the case here of disparate impact discrimination. Let's establish how the court disposed of the claim first, then we'll talk about the implications. Well, what the court said is that there was no implied right of action for the private individual for the disparate impact. Even though the court acknowledged that it had previously said for intentional discrimination, there might be a private cause of action. Here the court said that because Congress had not expressly created that private cause of action, there wasn't such a cause of action. The court said perhaps there are remedies by shutting down the funding for the institution, or maybe left open the question whether there's a possible 1983 action in these cases. But because there was no express Congress authorization for a private cause of action, that did not exist. And so the implications for district judges that they're gonna be seeing cases in other grounds. I think that's right. One other possible implication is that the majority opinion pretty strongly suggests that the underlying regulations themselves may not be valid under the statutory scheme that Congress has established. The majority notes, for instance, that these regulations are in considerable tension with Bakke and other cases that say section 601 itself forecloses only intentional discrimination. So it's not hard to imagine that other shoe dropping fairly soon. I think this case is also part of a fairly consistent trend by the court in recent years of tightening up on private rights of action in general. Well, let's stay on that same subject of private litigants enforcing civil rights statutes and turn to this case of Buckhannon, board in care home versus West Virginia. As you know, lawyers for the home brought an action under the Age Discrimination Act because West Virginia laws required that residents of these homes be able to get out on their own steam, and they couldn't do that here. So they threatened to deny certification to the home. Lawyers brought suit. The West Virginia legislature, before the District Court could act, changed the law. They repealed the statute. The attorneys sought attorney's fees that were under the fee shifting provision of the ADA. But in the Fourth Circuit anyway, it wasn't available. And it turns out from the Supreme Court, it's not available to others. That's right. The court held that the plain meaning of prevailing parties in the statute is that they get a court ordered resolution of the case, either a litigated judgment or a court endorsed consent decree. The court relied in part on Black's Law Dictionary, which used prevailing parties in that sense, but it also picked up the definition of prevailing parties in other related statutes. The important thing is that the court rejected the catalyst theory, which is that a plain, maybe a prevailing party, if he achieves the desired result, because the lawsuit brought about a voluntary change in conduct by the defendant, whether or not there's a litigated judgment. And there was discussion in the majority opinion. There was discussion in a lot of commentary about this case, about its impact on litigation strategies now that the catalyst theory isn't available anymore. Do you have any comment on that? Well, that is certainly a central concern of the opinions. The majority thinks that the catalyst theory may actually create a disincentive for defendants to settle. If you want to avoid fees liability, you have to fight to the bitter end, even if you want to change your conduct afterwards, because that's the only way to avoid paying for the lawyers. The dissenters, on the other hand, worry that defendants will have an incentive when they see that they're about to lose to change their conduct at the last minute, moot out the case, and therefore, cheat the plaintiff of the fees. The majority says not to worry about that, because for one thing, if you have a damages claim in the case, then the case won't become moot. There's also something called the voluntary cessation doctrine, that if the defendant is free to go back to his old mischievous ways, then the case won't be moot either. So it's unlikely that this tactic would be too successful. But there obviously is going to be speculation about what tactics to use. Absolutely. Thanks, Ernie. Lori, we all know the case of PGA versus Martin. Casey Martin clearly couldn't walk a golf course. He's a professional golfer, and needed an electric cart, and sued the PGA Tour under the Americans with Disabilities Act. Was this a narrow case, a broad case? What do we know about the ADA after this case? It was actually a very narrow holding by the court with regard to Casey Martin's situation. What we know is that the court said, look, golf courses are public accommodations covered by the ADA. The court really didn't have to decide the bigger question of client or customer since they found that Casey Martin, who paid to participate, did qualify. And it was also agreed upon that it was reasonable and necessary for him to have this type of accommodation, because even by using the cart, he didn't have an undue advantage over the other golfers. What we really learned was what the court's attitude was with regard to the fundamental nature of the game of golf, which the court said was not the fatigue factor, it was walking, not that, walking the course, but in fact, making the shots. And Justice Stevens had a certain amount of fun with the opinion, you think? That's right. Thanks very much, Lori, and thank you, Ernie. Next, we'll take up this term's cases involving elections and voting rights. The court's election cases, particularly those involving the presidential election, we're a big part of this term's news. We've prepared a brief video segment about four cases. Let's take a look at that, and then Erwin Chemerinsky and Ernie Young will have some comments. For the last several years, elections have been in the news and before the court. What did the court do this term and what's on the horizon? In this segment, we'll look at four aspects of elections, term limits and cook fee gray-like, campaign finance and FEC, the Colorado Republican Federal Campaign Committee, redistricting and hunt fee chromarty. And finally, whether last year's presidential dispute in Bush v. Gore created new equal protection standards for election procedures. First, term limits. Or more accurately, what may states do to try to limit the term served by members of Congress? In 1995, in U.S. term limits v. Thornton, the court threw out an Arkansas constitutional provision that said people who had served three terms as a member of the United States House of Representatives or two terms as a member of the United States Senate are not eligible to appear on the ballot. The court said that the power to add qualifications is not reserved to the states by the 10th Amendment. The decision this term, cook fee gray-like, involved a Missouri constitutional provision to try to encourage the election of term limit proponents. It directed the ballots to say next to certain candidates' names that they disregarded voters' instruction on term limits. Missouri said it was exercising its right under the 10th Amendment to instruct its legislators and its right to regulate the conduct of elections. But the Supreme Court said any authority to regulate federal elections had to be delegated to rather than reserved by the states. This authority is to regulate the times, places and manner for electing federal legislators. The requirements imposed by Missouri went well beyond those mechanical regulations. Next, campaign finance laws. The issue in FEC, the Colorado Republican Federal Campaign Committee, can Congress, under the First Amendment, limit political parties' campaign expenditures that are coordinated with a candidate's congressional campaign. The key precedent here is the 1976 Buckley v. Velaio decision, which the court essentially confirmed last term in Nixon v. Shrink, Missouri government PAC. Congress can limit the amount people can contribute to a political campaign. That's not a First Amendment violation because there are other ways for a person to express her political views. But Congress cannot set ceilings on the amount people spend on political campaigns themselves. That restricts the ability of candidates, citizens and associations to engage in protected political expression. This term in the Colorado case, the court reaffirmed its holdings in Buckley and Shrink, Missouri government PAC. Expenditures coordinated with a campaign, even expenditures by political parties, are to be treated as contributions. Thus, the court upheld Congress's limits on party spending that is coordinated with a candidate's campaign. If a party has the right to make unlimited coordinated expenditures, a candidate's supporters could contribute to the party to finance coordinated spending for that candidate. This, said the court, would increase the risk of bypassing the valid contribution limits that Buckley upheld. Third, redistricting. When legislatures draw boundaries, what's permissible under the Equal Protection Clause and the 1965 Voting Rights Act? Shaw v. Reno in 1993 involved a challenge to North Carolina's 12th Federal Legislative District. The court said that if a district can rationally be viewed only as an effort to segregate the races for purposes of voting, it is unconstitutional. Such racial gerrymandering may exacerbate the very patterned of racial block voting that majority minority districting is sometimes said to counteract. The 12th District came back to the court three more times, including this term in Hunt v. Chromarty. Throughout the controversy over the 12th District, the question the courts have asked, how to distinguish redistricting based on politics, which is constitutional, from redistricting based on race, which is not. Furthermore, in its amicus brief, the government reminded the court that this was its final opportunity to clarify the legal standards governing a racial gerrymandering claim before state legislatures begin the redistricting process based on the 2000 census. In Hunt, the court upheld the redrawn 12th District. Justice Breyer said for the five justice majority that the attacking party has not successfully shown that race, rather than politics, predominantly accounts for the results. The court pointed out, for example, that in North Carolina race correlates closely with political behavior. African-Americans there vote overwhelmingly democratic. The fact finder must be careful before assuming that a heavily black district reflects primarily racial, as opposed to political party considerations. The fourth question for this segment, did the court's decision resolving last year's presidential election turmoil create a new legal standard for judging election procedures? The Supreme Court said last December that a partial manual recount of presidential ballots in Florida cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. But the percurium opinion stressed that the decision was limited to the present circumstances for the problem of equal protection and election processes generally presents many complexities. Nevertheless, some commentators insist the court has opened up new grounds for challenging elections, which are almost certain to come under increased scrutiny in light of the last election. Voting methods in five states are already under court challenge based on Bush v. Gore. To provide some perspective on the likely impact of these cases are Ernie Young and Erwin Chemerinsky. Erwin, we're gonna spend most of our time on the reapportionment case in Bush v. Gore, but the FEC case, although it's pretty dispositive as to the federal law, probably provides guidance also to judges dealing with state and local finance laws, campaign finance laws. What is the guidance? Many state and local governments have laws regulating spending in state and local elections, and there are already many challenges pending in federal courts and more likely. I think this case does provide a framework for courts to use in evaluating these challenges. The case clearly says that contribution limits generally are allowed, though there's still an open question so that some contribution limits might be so restrictive as to violate the First Amendment. Expenditure limits, though, generally are not allowed, but this court says in this case that coordinated expenditures can be restricted even if they're by political parties. So that's what to use in evaluating state and local. That's right. Thanks a lot. Now let's go to the reapportionment case. If the 1990s are any guide, we are on the cusp of another upsurge in voting rights and redistricting cases after the 2000 census. There's a chart on the screen we can look at that shows that in 1992, almost a quarter of the 2000 cases filed in that decade came in 1992, so presumably 2002 is gonna be the year. What is the guidance for federal judges from Cromarty facing this upsurge in cases? Justice Breyer's majority opinion clearly says that the government may use political factors in drawing election districts. For example, it could create a majority black district, create a safe seat for an incumbent, or create a majority black district, so it could create a majority democratic district. However, the government cannot use race as the predominant factor in drawing election district lines, such as making it easier to elect a minority representative. It's interesting here that the district court had found as a matter of fact that race was the predominant motivating factor. The Supreme Court overturned the three judge panel's fact finding is quote clearly erroneous, something the Supreme Court really does. Let me ask you this question, getting back to the litigation that the courts will be facing. It's not only a matter of one person, one vote, and avoiding districts based on racial lines, as you just described, but there are other standards that courts have to observe, just refresh us to what those are. Is you referred to, there are constitutional limits in districting based on equal protection, one person, one vote, that race can't be the predominant factor in drawing district lines. Additionally, the Voting Rights Act of 1965 as amended in 1982 also create requirements. Under those laws, and particularly in 1982 amendment, any practice in drawing district lines that has a disproportionate racial impact can be challenged, and under the standards of Thornburg versus Jengles, districts have to be compact, they have to be contiguous, and the like. Okay, thanks very much. Ernie, let's turn to Bush v. Gore, and we're not going to revisit all the events of last December, but as the piece pointed out, the video piece pointed out, the court based its refusal of the standardless manual recounts in Florida to continue because of an equal protection problem, but then it tried to cabin the decision, the opinion just reading once more. Our consideration is limited to the present circumstances for the problems of equal protection and election processes, generally presents many complexities. Can this holding be limited to what happened last December? Well, I don't think it's going to be limited just to what happened last December, but the court is going slowly here and properly so. I think at the least, if the court orders a statewide manual recount in say a gubernatorial election or a senatorial election, then the uniform counting standards that are required by Bush v. Gore are going to apply. And if, for one of those elections, if some of the jurisdictions have electronic voting machines and others have punch cards, is that going to be coming in an issue? I think that's a terribly interesting question because that's something that particular political groups have a real incentive to challenge. Those kinds of disparities in the vote counting methods tend to track various socioeconomic and even racial lines. And so there's a big incentive, a big ability to perceive who would benefit from striking something like that down. And the crucial question is going to be what sort of state interest is going to count as sufficient to justify that sort of disparities? I think Bush v. Gore rules out one possibility, which would be simply that the interest in local control of the decision is itself enough to justify doing it differently in different localities. But there are other possible interests in primarily costs. And the question is whether the cost of replacing all the voting machines would itself be enough to justify staying with what you have. I think an important threshold question in dealing with those challenges would be what level of scrutiny is to be used? Is it rational basis or strict scrutiny? The Supreme Court didn't say but the district courts and courts of appeals are going to have to decide that in resolving the issues. If it's rational basis review, then saving money is sufficient. But if it's strict scrutiny, the Supreme Court has always said efficiency in saving money aren't enough to meet that rigid test. And we'll watch how that comes out. Thanks very much, Irwin. And thank you, Ernie. I should mention that the Senate is developing some materials to help judges faced with redistricting cases, including explanations of some of the statistical evidence likely to be offered. We hope to have those materials ready sometime this fall. That concludes the first part of this review of the Supreme Court's October term, 2000. After a short break, we'll take up some of this term's decisions involving criminal law, criminal procedure, sentencing and prisoner litigation, and three decisions involving the rights of aliens.