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Law Professor Marci Hamilton Analyzes the Supreme Court's Recent Term July 5, 2000 More chat transcripts ------------ Edward Lazarus - Medical Marijuana Edward Lazarus - Bush/Supreme Court Anthony Sebok - IBM/Holocaust Julie Hilden - KKK/Freedom of Speech Charles Compton - Microsoft John Dean - Rich Pardon Kevin Grierson - Napster Marci Hamilton - Napster Robert Precht - Embassy Bombings Yonah Alexander - Lockerbie Jonathan Nelson - Embassy Bombings John Dean - Bush Transition Victor Williams - Elections/Supreme Court Edward Lazarus - Elections/Supreme Court Michael Dorf - Elections/Recount John Dean - Elections/Watergate Catherine Christophillis - Drugs/Pregnancy Jennifer Granick - Drugs/Pregnancy Kevin Grierson - Napster Trial Ed Masry - Erin Brockovich Piere Thomas - Wen Ho Lee Lauren Gelman - Internet/Speech Anthony Sebok - Firestone Tires Neal Katyal - Clinton Sanford Levinson - Election Ruti Teitel - Ousted Leaders David Thibodeau - Waco Michael Dorf - Supreme Court Byron Sage - Waco David Linder - Scopes trial Marci Hamilton - Supreme Court Thomas Jurgensen - Human Genome Jeffrey Rosen - Privacy issues Solomon Wisenberg - Death penalty Ted Conover - Sing Sing prison Matthew Glavin - Clinton disbarment Anthony Sebok - Tobacco litigation Douglas Lichtman - Music copyright David Martin - Elian case

(CNN) -- Marci Hamilton, a constitutional law professor at the Benjamin N. Cardozo law school in New York, joined Law Chat on Wednesday, July 5, to discuss the Supreme Court's recent term. Law Chat is presented by FindLaw. CNN provided a typist for her. The following is an edited transcript of the chat:

Chat Moderator: The Supreme Court term ended last week. What, in your opinion, were some of the highlights of this session?

Marci Hamilton: The most interesting cases were cases that were predictable. No one thought that school prayer at football games would be constitutional, and the court said it wasn't. No one thought that the Supreme Court seriously would get rid of the Miranda warning, and they did not.

These were landmark decisions, but not terribly surprising. Likewise, the case involving the Boy Scouts. It would have been very surprising to say that a private organization, especially one involving children, could not limit the qualifications for those who oversee the children. The court has been very concerned about protecting children for the last two decades or so. Whatever your views on homosexual rights, this was a case about a private organization and children. And then the other case that's worth some comment is the court's willingness to let the federal government give computers to parochial schools. The court split in a way that makes it apparent that vouchers and charitable choice may face real difficulties.

Question from why: If they were predictable, why bother the Supreme Court with them?

Marci Hamilton: Because the time was ripe for the court to make a definitive statement in both school prayer and Miranda. Question from st3v3-EIB: Were you surprised the decision was 5-4? Marci Hamilton: No. The court split along its typical conservative-liberal lines in the Boy Scout case. It does illustrate that the next president has the capacity to reverse some interesting cases with new appointments.

Question from Ubo: Is it the court's view that homosexuals are a threat to children?

Marci Hamilton: No. Clearly not. It's the court's view that private organizations should be permitted to choose the qualifications for their leaders, according to First Amendment principles. There is no anti-gay rhetoric in the majority opinion.

Question from st3v3-EIB: How do you think the parochial school ruling will affect a future ruling on school tuition vouchers?

Marci Hamilton: We have four justices who seem to be saying that vouchers are okay. But we have five justices who are very insistent that if the government money stream gets diverted to religious purposes, the establishment clause will be violated.

Question from MoseKnows: Why is the Supreme Court divided between conservative-liberal lines... are they not there to rule on constitutionality of laws and not on party ideologies?

Marci Hamilton: The court is more unified than not. They certainly are not ruling on party lines. But each justice has a particular bent that leads them to decide issues in either a more conservative or more liberal fashion. Each of the justices was chosen based on his or her viewpoint. But justices frequently change their viewpoint once they get to the court. For example, George Bush's choice of David Souter was intended to be a conservative choice, but he has become one of the stalwarts in the liberal wing of the court. But you need to remember the justices are shielded from political pressure. They have the latitude to make up their own mind.

Chat Moderator: How many new justices will be added in the next two years?

Marci Hamilton: Speculation is that from one to four justices could be replaced. Conservative justices are unlikely to step down in an Al Gore presidency. Liberal justices are unlikely to step down in a Bush presidency. The most senior justices right now are Chief Justice Rehnquist, Justice Stevens and Justice O'Connor.

Question from SelfGovernment: Do you think the founders of the country even intended for the federal government to be indoctrinating children by controlling the education systems? Shouldn't the parents assume the responsibility of educating? Wouldn't prices of a private education company be affordable to everyone under a completely free market and the quality be much better if the government weren't involved and competition for customers were allowed?

Marci Hamilton: The framers at the Constitutional Convention discussed the importance of education in a democracy. The only way for the people to be a check on their rulers is through informed and educated decision making. There was a proposal for a national university. That proposal got lost in the discussion about more pressing issues. But the framers clearly thought that education was a minimum requirement to make the system work. So, the development of public education available on a universal basis can be directly traced to the framers' intent. Whether a free market in education, with no public education provided, would provide the better system, is really a question for an economist.

Question from Double_Down: In the past five years, the Supreme Court has shown a tendency towards state's rights. Do you think this term upheld that trend? Do you see more cases coming down the pipe that will raise these same issues?

Marci Hamilton: This term, the court addressed the Violence Against Women Act, and clearly took a state's rights perspective. They addressed age discrimination laws and concluded using a state's rights perspective that states could not be sued under the federal statute. Which is to say that they clearly remain on the state's rights path. They had granted a case involving the constitutionality of the Americans with Disabilities Act. This case will be argued next fall, and falls right into line with the other state's rights decision.

Question from Chauncey: In actuality the government has no constitutional authority in the educational process, correct?

Marci Hamilton: No, that's wrong. The federal government has no enumerated power over education, but state and local government are free to legislate on any topic, and especially those that are not reserved to the Congress. So it is certainly constitutional for the federal government to regulate and set up public school systems.

Question from SelfGovernment: I fail to see the responsibility of the federal. Obviously education is recognized universally as beneficial. Do you have any specific quotes by founders? Who proposed a national education system?

Marci Hamilton: It was not that they proposed a national education system; they proposed a national university. It was James Wilson, who was one of the most influential framers, who made the proposal. There is nothing in Congress' enumerated powers that gives Congress the power to regulate education. Which is why the call by both candidates, Bush and Gore, to increase federal involvement in education, is troubling.

Question from SigSauer: How much weight can the "framers intent" have in any Supreme Court decision?

Marci Hamilton: The framers' intent is one factor in a matrix of factors that will drive the court's holding. Justice Thomas puts almost exclusive reliance on original intent. But it is my view that the framers intended the Constitution to be a flexible document that would address abuses of power in each era.

Question from why: Does Congress want that responsibility and why would that be better?

Marci Hamilton: It appears that there is no politician alive today, who does not want to claim that they have or can solve the problems facing our educational system. This should come as no surprise. The framers predicted that every individual holding power would be sorely tempted to abuse it. Whether Congress seeks this power or not, the Constitution and our tradition would indicate that education is a local concern and not a federal concern.

Chat Moderator: In the Florida age discrimination case, is the court saying that if an employer has no history of age discrimination that it will be harder for people to argue that they are victims of age discrimination?

Marci Hamilton: The Kimel case only addressed whether individuals could sue a state for age discrimination. It did not address burdens of proof. The court held that the 11th Amendment prohibited suits against the state under the ADEA.

Question from Double_Down: How politically insulated is the Supreme Court? After all, FDR threatened to "pack" the court if they didn't go along with him. The budget for the court comes from Congress. How much autonomy are they really given (besides being the constitutionally mandated "third branch")?

Marci Hamilton: The court-packing plan by FDR was a constitutional crisis in which this president was over-stepping his bounds. Common wisdom would say that it would not happen again. The justices are not subject to election, do not have to take constituent calls, and once they're on the court, they are free to make any decision they deem wise. No one goes to the Supreme Court who is a first-rate attorney, expecting to make much money. So, the power of Congress over the purse is irrelevant. You add to that the absolute professionalism and integrity of the men and women who have held this position and they have a great deal of latitude beyond the political sphere.

Chat Moderator: Do you have any final thoughts for us today?

Marci Hamilton: This is a court worth watching. They are young, smart, interesting, and the next term that is shaping up looks to be just as interesting as this last one was.