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Issuing a flurry of opinions to close out its 2002-03 session, a frequently splintered Supreme Court handed down rulings on affirmative action, gay sex, free speech, states’ powers, and the rights of defendants facing the death penalty, among others. Below is a summary of the 10 cases decided in the final week of the Court’s term. AFFIRMATIVE ACTION The Supreme Court gave a surprising and historic embrace to the concept of affirmative action in university admissions June 23, dashing the hopes of the Bush administration and conservatives that racial preferences would come to an end. Writing for the 5-4 majority in Grutter v. Bollinger, No. 02-24, Justice Sandra Day O’Connor said the Court, in upholding the University of Michigan Law School’s race-conscious admissions policy, was endorsing Justice Lewis Powell Jr.’s view in Regents of the University of California v. Bakke 25 years ago that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” But she set limits. Affirmative action programs must be narrowly tailored and of limited duration. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she said in announcing the decision from the bench. Minutes later, Chief Justice William Rehnquist read from his separate 6-3 majority opinion in Gratz v. Bollinger, No. 02-516, striking down Michigan’s undergraduate admissions program as “not narrowly tailored,” in part because it gives an automatic 20 points for minorities toward the 100 points needed for admission. The Court in Gratz tasked higher education with the requirement that race be considered only as part of an “individualized review” of applicants — a burden that universities said in advance would be too costly, but on Monday seemed ready to shoulder. “The fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system,” Rehnquist wrote. Though described by Justice Antonin Scalia as a “split double-header . . . perversely designed to prolong the controversy and the litigation,” the decisions left supporters of affirmative action far more elated than disheartened — mainly because of O’Connor’s unequivocal endorsement of affirmative action. “Effective participation by members of all racial and ethnic groups in the civil life of our nation is essential if the dream of one nation, indivisible, is to be realized,” she wrote in Grutter. “The law school has determined, based on its experience and expertise, that a critical mass of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.” O’Connor was joined in the majority by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Rehnquist, in his majority opinion in Gratz, the undergraduate admissions case, cautioned that embracing that goal does not mean that “a university may employ whatever means it desires . . . without regard to the limits imposed by our strict scrutiny analysis.” The dissenters in Grutter — Rehnquist and Justices Scalia, Clarence Thomas, and Anthony Kennedy — were joined in Gratz by O’Connor and Breyer. Breyer wrote a brief concurrence in Gratz, but did not explain his dual votes. The Grutter ruling was a personal win for Latham & Watkins D.C. partner Maureen Mahoney, who argued in the case on behalf of the university and who was in the courtroom to hear the decision handed down. The affirmative action rulings were a substantial vindication for the gamble taken by the University of Michigan in defending its programs in the face of near-certain defeat or curtailment, given the disdain for affirmative action that the Court had shown in other cases. The decisions also represented a defeat for Thomas, whose passionate opposition of affirmative action failed to sway O’Connor, long viewed as the swing vote in the case. In an angry dissent, the Court’s only African-American justice attacked the majority for giving universities 25 more years to use race-based preferences. “The Constitution means the same thing today as it will in 300 months,” said Thomas. Citing sources ranging from abolitionist Frederick Douglass to recent research, Thomas argued that racial preferences do minorities no favors, instead stigmatizing them and even harming their education. He dismissed preference programs as “racial aesthetics,” adding in a footnote, “the law school wants to have a certain appearance, from the shape of the desk and tables in its classrooms to the color of the students sitting in them.” — Tony Mauro GAY RIGHTS In a dramatic declaration of the rights and status of gays in American society, a 6-3 majority of the Supreme Court on June 26 struck down a Texas same-sex sodomy law on due process grounds. In doing so, the Court took the rare step of sweeping aside a recent precedent, its controversial 1986 decision in Bowers v. Hardwick. “Its continuance as precedent demeans the lives of homosexual persons,” Justice Kennedy wrote for the majority in Lawrence v. Texas, No. 02-102. “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Kennedy added, “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Ruth Harlow, legal director of Lambda Legal, who was instrumental in deciding to bring the Lawrence case to the Supreme Court, applauded the ruling as a “transformational” event that ushers in a new era of legal and social acceptance for homosexuals and recognizes “the basic humanity of gay people.” The majority’s decision to ground its ruling in the 14th Amendment’s due process clause — rather than only the amendment’s equal protection provision — came as a surprise to some analysts. The result is a more forceful opinion that could have broader implications. Justices Stevens, Souter, Ginsburg, and Breyer joined Kennedy’s opinion. Justice O’Connor, part of the majority in Bowers, wrote a concurring opinion on Thursday stating that she would have invoked equal protection, and that she does not agree Bowers should be overruled. The decision, paired with the June 23 rulings on affirmative action, marked a surprising show of strength and dominance for the Court’s moderate-to-conservative swing-vote justices — Kennedy and O’Connor — thwarting the conservative wing, represented by Rehnquist, Scalia, and Thomas. In Lawrence, Scalia read from the bench excerpts from his dissent, which calls the Court majority “a product of a law-profession culture that has largely signed on to the so-called homosexual agenda.” Overturning Bowers, Scalia said, amounts to a “massive disruption of the current social order” that will undermine laws on activities ranging from bigamy to incest to obscenity and prostitution. He also suggested that laws against gays in the military were vulnerable, and he said that the ruling “leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.” Rehnquist and Thomas joined the dissent. In a separate dissent, Thomas said the judgment about laws like the one at issue should be made by elected officials, not by the judiciary. “If I were a member of the Texas Legislature, I would vote to repeal it.” Outside the Court, opponents of gay rights also attacked the ruling as a sign of the erosion of morality. Peter Sprigg, senior marriage policy analyst for the Family Research Council, said the Court had no basis to overturn Bowers except a “shift in the winds of cultural fashion.” After placing a red stole around his neck, the Rev. Rob Schenck, president of the National Clergy Council, delivered a sermon outside the Court. “The Court has made a serious mistake,” he said, calling homosexuality a “violation of God’s laws.” He called for Texas to re-examine its laws and bring back one that bans not only gay sex but also heterosexual sodomy and adultery. Kennedy, in his majority opinion, said the sodomy case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” But Scalia dismissed that statement as true “only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.” The majority opinion was remarkably dismissive of Bowers, its rationale, and even its factual findings about the history of laws on homosexual conduct. The late Chief Justice Warren Burger had written in a concurrence in Bowers that laws against such activity “have ancient roots.” But, Kennedy stated Thursday, Burger’s “historical premises are not without doubt and, at the very least, are overstated.” Kennedy invoked instead more recent enactments — including European laws and rulings — as well as Griswold v. Connecticut, Roe v. Wade, and Planned Parenthood of Southeastern Pennsylvania v. Casey as authority for the conclusion that private sexual acts between consenting adults are part of personal liberty protected by the due process clause. Liberty encompasses personal decisions about marriage, procreation, family relationships, and education, he said, adding, “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” That sentiment permeated the ruling, as Kennedy made similar comparisons, giving the interests of gays and heterosexuals the same weight. In another section, Kennedy asserted, “To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” — Tony Mauro COMMERCIAL SPEECH The much-anticipated commercial speech ruling in Nike v. Kasky, No. 02-575, fizzled last week when the Supreme Court announced that the California Supreme Court’s judgment in the case was not ripe for review and should be sent back for possible trial. The dispute over whether Nike is entitled to full First Amendment protection for statements it made in defense of its global labor practices during the late 1990s was viewed as a major test of the Court’s evolving commercial speech doctrine. The case could return to the high court after discovery and trial, neither of which occurred before the California Supreme Court issued its 2002 ruling against Nike. Consumer activist Marc Kasky had invoked California’s false-advertising law to sue Nike for its statements — in letters to the editors, op-ed columns, and public statements — rebutting charges of sweatshop labor. A state trial court dismissed his complaint, and the California Court of Appeal affirmed, holding that Nike’s statements were part of a public debate “within the core area of expression protected by the First Amendment.” The California Supreme Court reversed and remanded the case, upholding Kasky’s use of false-advertising laws, but noting that the case is “still at a preliminary stage” and that no determination had been made about whether Nike’s statements were false. The high court, in its final ruling of the term June 26, dismissed the Nike case as improvidently granted, an action that usually goes unexplained. But Justice Stevens, joined by Justices Ginsburg and Souter, elaborated on the dismissal in a separate statement. Stevens said the lack of a final California judgment was a factor in the high court’s action. Nike had argued that the urgent nature of the First Amendment issue in the case warranted Supreme Court review under Cox Broadcasting v. Cohn, a 1975 decision that allows exceptions to the finality rule in First Amendment cases. But Stevens said the Court had decided the California ruling was still too preliminary for review. “Even if we were to decide the First Amendment issues presented to us today, more First Amendment issues might well remain in the case.” The case was too important and raised too many “novel” issues, Stevens said, to be decided prematurely. Stevens also said Kasky did not have standing to bring the suit because he never alleged that he had “any personal stake in the outcome of the case.” Justices Breyer and O’Connor dissented from the dismissal, arguing that there was no procedural obstacle to the Court deciding the case now — especially in light of the key First Amendment issues involved. They said the kind of action brought by Kasky poses “a serious burden on speech” and should be deterred. Breyer said the case should be reviewed under a legal standard of “heightened scrutiny.” Justice Kennedy also dissented, but did so without comment. Nike officials said they were heartened by sympathetic language in the writings in the case, but were disappointed that the issue had not been resolved. Discovery and trial preparations are now likely to resume in California courts. In the meantime, Nike General Counsel Jim Carter said, company officials are in a “real difficult circumstance” in determining how to explain Nike’s message on public issues without running afoul of the California court’s judgment. — Tony Mauro INTERNET FILTERING The Court upheld a federal law that requires libraries to filter out pornographic material from their Internet terminals as a condition for receiving federal funds. The 6-3 ruling in United States v. American Library Association reversed a 2002 decision by a special three-judge panel sitting in Philadelphia. That panel found that the Children’s Internet Protection Act (CIPA) violates the First Amendment by restricting the ability of Web publishers to express their ideas and the ability of library users to obtain the information they need. The much-watched case dealt with the third attempt by Congress to restrict sexually explicit material on the Internet. In 1997, the Supreme Court overturned most of the Communications Decency Act, which banned Internet pornography, and in 2002, it struck down most of the Child Online Protection Act, which made it illegal for Web sites to transmit material harmful to minors. Chief Justice Rehnquist’s June 23 opinion, which was joined by three other justices, rejected the First Amendment claims against CIPA. Rehnquist said that libraries are generally free to choose which books to buy for their collections and that, by analogy, the Constitution does not require that they make available all possible Web-based materials to users. Moreover, Rehnquist wrote, “A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak.” In response to concerns that many Internet software filters are overly broad and block legitimate nonpornographic sites, Rehnquist noted “the ease with which patrons may have the filtering software disabled.” Under CIPA, if a library patron requests it, a librarian can eliminate the filter for “bona fide research or other lawful purposes.” Justices Scalia, O’Connor, and Thomas joined Rehnquist’s plurality opinion. Justices Kennedy and Breyer each wrote separate concurring opinions. Both focused on the the fact that the statute preserves the opportunity to disable the blocking software. This, they said, is a key factor that rules out a “facial” challenge to the statute — a challenge that targets the words of the law itself rather than the way it is applied. Justice Stevens wrote a dissenting opinion, arguing that the “overblocking” of nonpornographic sites “is the functional equivalent of a host of individual decisions excluding hundreds of thousands of constitutionally protected messages from Internet terminals located in public libraries throughout the Nation.” Justice Souter, joined by Justice Ginsburg, also dissented. Souter’s opinion focused on the argument that disabling the software filters is not automatic and that “some restriction” of library patrons’ access is inevitable. Souter said that CIPA therefore involves some form of government “censorship.” — Jonathan Groner HOLOCAUST DISCLOSURE By a 5-4 margin, the Supreme Court on June 23 invalidated a California state law that required insurance companies doing business in that state to disclose information about policies they sold in Europe between 1920 and 1945. The law was intended to hold the companies responsible for paying claims made by Holocaust survivors living in California. The Court’s majority, in an opinion written by Justice Souter, found that the statute impinged upon the president’s foreign affairs responsibilities and might sabotage diplomatic efforts to obtain funds for Holocaust survivors from European nations. The dissent, by Justice Ginsburg, who was joined by Justices Stevens, Scalia, and Thomas, said that no executive agreement had explicitly declared that it was pre-empting state laws on the matter, and therefore judges “should not be the expositors of the Nation’s foreign policy, which is the role they play by acting when the President himself has not taken a clear stand.” The case was American Insurance Association v. Garamendi. — Jonathan Groner INEFFECTIVE ASSISTANCE OF COUNSEL Voting 7-2 in Wiggins v. Smith, 02-311, the Court found that a criminal defendant whose trial lawyer failed to conduct a reasonably thorough investigation into his social history was denied his Sixth Amendment right to effective assistance of counsel. Kevin Wiggins’ childhood was a horror of privation, physical torment, hunger, and sexual abuse. But his defense lawyers investigated few of the details of that childhood and presented none of it to the jury in Baltimore County, Md., that later sentenced Wiggins to death for first-degree murder, robbery, and two counts of theft. Writing for the majority, Justice O’Connor explained that the Court’s principal concern in deciding whether Wiggins’ defense lawyers exercised reasonable professional judgment “is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable.“ Before embarking on a strategy that excludes the presentation of mitigating evidence, the Supreme Court ruled, defense counsel must first investigate what mitigating evidence is available. The Court allowed Wiggins’ conviction to stand, but remanded the case for a new sentencing hearing. Justice Scalia penned a blistering dissent, which Justice Thomas joined, stating that the Court’s reasons for its interpretation of the facts “range from the incredible to the feeble.” “Today’s decision is extraordinary — even for our ‘death is different’ jurisprudence,” Scalia wrote. The opinion overturns a ruling of the U.S. Court of Appeals for the 4th Circuit. — Siobhan Roth ARBITRATION OF CLASS ACTIONS By a 5-4 vote, the Court on June 23 sent back to the South Carolina Supreme Court a dispute over whether an arbitration clause in a consumer contract permitted arbitration if the dispute became a class action. The South Carolina court had held that the contract was silent on that issue and proceeded to decide the case. But the Supreme Court said that this issue itself should have first been decided by an arbitrator. Since this had evidently not occurred, the Court sent the case back for such a decision. The opinion in Green Tree Financial Corp. v. Bazzle was written by Justice Breyer. Justice Stevens wrote a separate concurring opinion. Chief Justice Rehnquist dissented, saying this issue was one for a court, not an arbitrator, to decide, that a court had in fact done so, and that the case need not be sent back to the state courts. Justice Thomas wrote a concurring opinion. — Jonathan Groner LEGISLATIVE REDISTRICTING A divided Court on June 26 breathed new life into a Georgia Senate map that a lower court had struck down as violating the 1965 Voting Rights Act. Writing for the 5-4 majority in George v. Ashcroft, No. 02-182, Justice O’Connor said the lower court should take another look at Georgia’s map under a revised framework, one that allowed states to redraw their legislative districts even if the result was the election of fewer minority lawmakers. But, O’Connor added, such maps would have to “achieve greater overall representation of a minority group by increasing the number of representatives sympathetic to the interests of minority voters.” The decision was a major victory for Georgia Democrats, who argued that the Senate map they drew in 2001 — which split up black areas to spread reliable Democratic votes around the state — improved the lot of black voters. It also was a major clarification of Section 5 of the Voting Rights Act, which requires states that have a history of discriminating against minorities to get approval from federal authorities before making any changes in voting procedures. — Jonathan Ringel STATUTES OF LIMITATION The justices narrowly struck down a California law that permits prosecutions for child sex abuse crimes for an indefinitely long time, if the prosecution is begun within a year of the victim’s report to police. In a 5-4 decision written by Justice Breyer, the Court held in Stogner v. California, No. 01-1757, that because the 1993 law revives possible cases for which the three-year statute of limitations had already expired, it violates the Constitution’s prohibition of ex post facto legislation. “We agree that the State’s interest in prosecuting child abuse cases is an important one,” Breyer wrote. “But there is also a predominating constitutional interest in forbidding the State to revive a long-forbidden prosecution.” Justices Stevens, O’Connor, Souter, and Ginsburg joined the majority in the June 26 decision. Countering Justice Breyer’s lengthy excursion into British political and legal history in his majority opinion, Justice Kennedy wrote a dissent equally replete with 17th century precedent. “The California statute can be explained as motivated by legitimate concerns about the continuing suffering endured by the victims of childhood abuse,” Kennedy wrote. — Jonathan Groner

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