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Just before the Supreme Court convened for its final sitting of the term on June 29, Solicitor General Theodore Olson was asked how long it would take for him to recover from the defeats the Court had handed him the day before on the legal rights of enemy combatants and Guantanamo detainees. “I don’t know,” was Olson’s half-smiling reply. “I’m not out of the operating room yet.” Indeed, the Court wasn’t finished conducting major surgery on the government’s positions. Minutes later, Olson listened as the Court announced decisions that rejected his stance on the Child Online Protection Act and did not go as far as Olson wanted in discouraging foreigners from bringing tort claims in U.S. courts. Yet, as seemed typical for this term, neither of the Court’s final-day rulings had much finality to them. The Court said the government could still rescue the Internet law in further proceedings, and in the foreign tort case it seemed to invite a wave of litigation over human rights claims to resolve how far the door should be opened. The decisions symbolized a term in which the Court left many key issues unresolved and paused in some of its other notable trends — most prominently, federalism. Olson, who is stepping down this month, will be gone by the time the administration fully grapples with the uncertain implications of the Court’s final-week rulings, including those in the terrorism-related cases. But thanks to other high court decisions this term, the Justice Department already had a long to-do list. The Guantanamo ruling offers few details about what kind of process is due the detainees. The department will soon also be facing a wave of challenges against federal sentencing guidelines because of Blakely v. Washington, and it has to go back into lower court to defend the secrecy of Vice President Dick Cheney’s energy policy task force proceedings. Even the challenge to the words “under God” in the Pledge of Allegiance could return to haunt the government, since the Court sidestepped the issue because of “prudential” concerns over standing. Atheist Michael Newdow is already recruiting other potential challengers. It was that kind of term at the Supreme Court, with the justices forcefully asserting their primacy in taking up issues across constitutional and even national boundaries — and then, at the last minute, pulling back, compromising, or dithering, leaving it to others to pick up the pieces and fight another day. Liberals were eager to praise the Court’s terrorism-related decisions last week, with the American Civil Liberties Union’s legal director Steve Shapiro stating,”The Court deserves great credit for recognizing that the rule of law cannot be enforced in the absence of meaningful judicial review.” But in truth, many of the top cases the Court decided this term could return a year or more hence in some form or other — by which time the Court’s composition may have changed. “This is a Court that insists on having the last word — a judicial supremacy court,” said former Solicitor General Kenneth Starr, now a partner at Kirkland & Ellis, at a Washington Legal Foundation briefing June 30. “But it is reluctant to close the door” definitively on many key issues. Adds University of California Hastings College of the Law professor Vikram Amar: “This Court believes in courts, but figuring out what else it believes in is difficult. It’s very hard to draw straight lines through their cases this term.” A PRAGMATIC APPROACH To be sure, the Court was decisive in several areas, reaching a rare, usually pro-business, unanimity on a series of antitrust and environmental cases. “These issue would have polarized the Court 15 years ago,” says Richard Klingler, partner at Sidley Austin Brown & Wood. And last year’s debate over whether international laws, rulings, and norms are appropriate fodder for Supreme Court jurisprudence seems almost quaint after a term in which the Court was called on to address issues ranging from international antitrust law to global discovery rules and forum shopping. “The injection of new kinds of materials into the process of law creation may set the stage for a new period of judicial activism,” warns Northwestern School of Law professor John McGinnis, a critic of the trend. Former Justice Department official Viet Dinh, now a professor at Georgetown University Law Center, even sees the Court’s ongoing dialogue over international law as the “new federalism” debate, this one over the proper balance between the federal government and “extranational” governments in shaping Court doctrine. Still, on many of the term’s headline cases, the Court seemed reluctant to make front page headlines by declaring a flat-out winner — or loser. Starr ascribes the trend to a triumph of pragmatism over principle on a Court that is not committed enough to any outcome to ignore procedural niceties. Those who are fond of clear legal doctrine and unflinching legal principle, Starr laments, have endured a term of “sober suffering.” Sometimes, as in the Pledge case, Elk Grove Unified School District v. Newdow, the Court seemed grateful that an issue such as standing could enable it to sidestep a politically charged debate in a presidential election year. Because atheist Newdow’s custody battles gave him insufficient standing to challenge the Pledge on behalf of his daughter, Justice John Paul Stevens said June 14 that courts should withhold judgment “rather than reach out to resolve a weighty question of federal constitutional law.” Perhaps paradoxically, two weeks later Stevens criticized the Court for sidestepping Jose Padilla’s enemy combatant case because of another procedural problem: It was filed in the wrong district court. That issue, Stevens said, does not justify “avoidance of our duty” to answer “questions of profound importance to the nation.” An angry Justice Antonin Scalia last week had a harsher description for the bold self-image and sometimes gun-shy jurisprudence that co-exist in the current Court. In Sosa v. Alvarez-Machain, the ruling that tentatively leaves the door open to foreign tort claims in U.S. courts, Scalia wrote, “This Court seems incapable of admitting that some matters — any matters — are none of its business.” He called Justice David Souter’s majority opinion “today’s latest victory for [the Court's] Never Say Never Jurisprudence.” Amar speculates that after last term’s blockbuster decisions — on gay rights and affirmative action — the Court may have been eager to pull its punches this term. “They probably had to take the war on terror cases and the Pledge case,” he says. “But they were disinclined to say anything they didn’t have to say about them.” Some commentators point to Justice Sandra Day O’Connor’s enormous centrist power as another reason why the Court’s rulings fall so often in the middle, pleasing neither side completely. “Because of O’Connor, it may be the end of the line for the Rehnquist four,” says Thomas Goldstein of D.C.’s Goldstein & Howe, referring to Chief Justice William Rehnquist and frequent allies Scalia, Anthony Kennedy, and Clarence Thomas. Goldstein notes that O’Connor was in the minority in only five of the term’s 79 cases this term — by far the least frequent dissenter on the Court. On issues ranging from federalism to habeas corpus, he says, whatever line the Court draws and adheres to is O’Connor’s line. In Veith v. Jubelirer, it was Justice Kennedy’s cautiousness that carried the day. Four justices agreed that challenges to political gerrymandering are not justiciable because no “judicially discernible or manageable standards” exist. But Kennedy, whose concurrence controls the case, said suits should not be totally precluded because appropriate standards for reviewing gerrymandering claims “may yet be found.” ALTERED STATES In the area of federalism, the Court in Tennessee v. Lane offered the clearest signal this term that its pro-state preferences have limits. The Court said that when it comes to physical access for the disabled to state courthouses, the Americans With Disabilities Act of 1990 trumps state sovereign immunity. The 5-4 ruling found that imposing accessibility requirements on states was a valid exercise of congressional power under the 14th Amendment. In a number of other cases, the Court was also content to allow federal courts or laws to dominate over state actions. In Hibbs v. Winn, the Court ruled that state tax credits for parochial school tuition can be challenged in federal court. In Engine Manufacturers Association v. South Coast Air Quality Management District and Alaska Department of Environmental Conservation v. EPA, the Court decided that the federal Clean Air Act pre-empted state regulations that were in one instance stricter than federal standards and in the other less strict. Less surprisingly, in Aetna Health Inc. v. Davila, the Court found that the Employee Retirement Income Security Act, with its explicit pre-emption provisions, trumps state tort law. In these cases and others, the pro-federal outcomes were often welcomed by the business community, which usually argues that it prefers a single federal regulatory regime over 50 different state ones. University of Notre Dame law professor Richard Garnett also sees this term’s rulings in Blakely v. Washington and Locke v. Davey through a federalism lens. Blakely rejects state experimentation in sentencing, imposing a federal standard that requires juries, not judges, to decide facts that increase sentences, even within statutory maximums. The impact of the ruling will be felt for years at both the state and federal levels. Locke v. Davey, on the other hand, gives states a somewhat freer hand to experiment with policies that test the limits of the First Amendment’s religion clauses. Rehnquist wrote the majority finding that the free exercise clause did not bar Washington state from designing its college scholarship program to ensure that the state did not financially support the training of ministers. But overall, Garnett proclaims that “if there ever was any revolution” toward state-oriented federalism, “it’s over and in full retreat.” Michael Greve, who heads the American Enterprise Institute’s Federalism Project, does not go that far, but agrees that in the term just ended, federalism cases were “not as prominent” as they have been in many recent years. Greve thinks the federalism jurisprudence of the last decade may have reached “its natural limits,” or that it may have fallen victim to post-Sept. 11 desire for a strong federal government. “We’re in a war,” Greve says, so the Court’s attitude may be that “federalism is a luxury we cannot afford.” But the Court’s federalism debate is far from over, and two prominent cases already on the docket for next term ensure that it will continue. In Granholm v. Heald, a challenge to state prohibitions on direct wine sales to consumers across state borders, the Court will deal with an aspect of federalism that is actually in the Constitution: the 21st Amendment, which, in the process of repealing Prohibition, gave states power over the “transportation or importation” of alcoholic beverages. Wineries argue the restrictions limit interstate commerce. Ashcroft v. Raich asks whether the federal Controlled Substances Act should trump California’s Compassionate Use Act, which exempts the use of marijuana for medicinal purposes from state drug laws. But Greve, for one, is not optimistic that the justices will speak any more clearly or decisively next term than they did this past one. The end of a Court term reminds him, he says, of the last day of school, when parents are invited to view students’ sometimes-slapdash artwork on the walls. Praise is often given, he says, but privately, parents often think that the students “could do better.”

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