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Solicitor General Paul Clement says he’s noticed a new trend in the wardrobe of Supreme Court advocates. More and more men who argue before the Court are wearing bow ties, a tribute to the trademark neckwear of Justice John Paul Stevens � and to his power. Midway through the ninth decade of his life, Stevens reached the peak of his career in the Supreme Court term that ends June 27. With a strong assist from Justice Anthony Kennedy, Stevens, 85, was able to assemble majorities and write opinions that read like codas to some of the signature movements of the Rehnquist Court, most notably property rights and federalism. In the June decisions on the takings case of Kelo v. City of New London and the federalism dispute Gonzales v. Raich, it was Stevens reading the majority opinion from the bench, not Chief Justice William Rehnquist. And Justice Sandra Day O’Connor, the usual swing vote, was left writing dissents in both cases that had the tone of a justice betrayed, reminding her conservative colleagues of the doctrines they’d just left behind. “It was the term of Justice Stevens,” says Mark Levy, appellate head at Kilpatrick Stockton. “He used to be called a maverick, but not anymore.” Even before Rehnquist made any announcement about his future, some were saying that the Court’s Kelo and Raich rulings � along with a batch of decisions overturning prisoners’ death sentences and expanding civil rights remedies � had served as something of an ending point to the Rehnquist Court. “We have closure,” says Thomas Goldstein of Goldstein & Howe, a close student of Court trends. “This term was the closing of a chapter, if not the closing of a book.” Some are not so quick to pronounce the end of the Rehnquist Court and its legal legacy. But the fact that Stevens consistently dominated the Court this term was enough to give conservatives serious heartburn � and to step up the pressure on President George W. Bush to appoint a stout-hearted conservative who won’t let Rehnquist’s legacy fade further if the chief justice steps down. “I didn’t see any bright spots here. One of the worst terms ever for originalists,” says Mark Levin, author of the best-selling Men in Black, a conservative attack on judicial activism and the Supreme Court. “That’s why the next appointment is so crucial. If President Bush appoints someone who does not believe in these principles, he is not going to get the support he might expect.” Attorney General Alberto Gonzales, viewed by some as a moderate, is an example of the kind of nominee Levin thinks would get only lukewarm conservative support, especially in light of the Court’s current term. SENTENCE STRUCTURE Rehnquist’s bout with thyroid cancer, announced soon after the Court term began last October, cast a pall over the term, though insiders say the work of the Court was barely disrupted. Cancer treatments kept Rehnquist away from the Court in November, but by December he was back actively participating in the Court’s conferences. The Court’s first blockbuster decision came in United States v. Booker and United States v. Fanfan, the much-awaited pair of cases that would determine if federal sentencing guidelines were constitutional. In January the Court ruled they were not because they left too much fact-finding to judges instead of juries, in violation of the Sixth Amendment right to a jury trial. But the Court’s remedy was to make the guidelines advisory only, not mandatory � a solution that seemed to take some of the urgency out of the debate. Gonzales last week called for a “mandatory minimums” solution, to be imposed by Congress, to keep judges from imposing too-lenient sentences. But other players, including Congress, seem content to let the fallout from Booker and Fanfan sort itself out in the courts first. “The Supreme Court rulings changed everything, in one sense, but arguably they also changed very little,” says Ohio State University law school professor Douglas Berman, who chronicles the post- Booker/Fanfan sentencing world on his Sentencing Law and Policy blog. “The dynamics have changed, but in most cases the sentences have not changed.” Follow-up sentencing issues abound, but so far the Court has not added them to its docket for the fall. In terms of Rehnquist Court doctrine, the Kelo and Raich cases may have a more lasting impact. Kelo, in which the Court upheld government eminent domain power even when private property is taken for other private uses, was one of three property rights cases this term. In the others � Lingle v. Chevron and San Remo Hotel v. San Francisco � property interests also lost. Soon after Rehnquist became chief justice, in 1986, the Court issued a series of rulings that seemed to promise a property rights revolution. But it has largely fizzled, much to the disappointment of Roger Pilon of the Cato Institute and others. The trend has foundered at the hands of a Court full of “pragmatists” who are unwilling to take principled positions very far, Pilon says. “With the exception of Justice [Clarence] Thomas from time to time, there is no serious systematic thinker on the Court,” Pilon notes. Even Justice Antonin Scalia comes in for criticism. “His originalism is too selective to be taken seriously.” Pilon points to Scalia’s vote with the majority in the medical marijuana case, Gonzales v. Raich. Based on his zealous states’ rights approach in commerce clause cases since joining the Court in 1986, Scalia would have been expected to side with California’s voter-initiated approval of medical marijuana use. Instead, Scalia sided with federal drug enforcement laws, by sidestepping the commerce clause and relying on a catch-all section of the Constitution that gives Congress the power to enact “necessary and proper” laws. But Kilpatrick Stockton’s Levy insists Raich does not mean the end of the Court’s federalism juggernaut. “It may have marked the end of the beginning, to quote Churchill,” he says, adding that, short of the line drawn in Raich, the Court is likely to continue boosting state power in areas ranging from the 10th and 11th amendments to habeas corpus. THE ULTIMATE PENALTY The Court’s June rulings were not this term’s only controversial decisions. On March 1, Kennedy, writing for a 5-4 majority, with O’Connor dissenting, said the execution of those who were under 18 when they committed their crimes was unconstitutional. The Roper v. Simmons ruling was grounded in Kennedy’s view that juveniles lack the maturity and judgment to be among the most culpable defendants and, therefore, should not get the most serious penalty � death. But Kennedy went on to say that the ruling finds “significant confirmation” in the fact that no other nation executes juveniles anymore. Conservatives pounced on Kennedy, asserting that his invocation of international law and norms was a nearly impeachable offense. House Majority Leader Tom DeLay (R-Texas) was incredulous when he said in April, “We’ve got Justice Kennedy writing decisions based upon international law � not the Constitution of the United States.” Christopher Simmons was not the only death row inmate who benefited from high court action this term. With searching detail earlier this month, Justice David Souter wrote majority opinions in Miller-El v. Dretke and Rompilla v. Beard that struck down death penalties because of serious trial flaws � racial bias in jury selection for Thomas Miller-El in Texas and ineffective assistance of counsel in the case of Ronald Rompilla in Pennsylvania. Rompilla, in particular, seemed to reflect the sentiment that before someone is executed, the system must “go the extra mile” to ensure fairness. A Court that routinely shrugged off habeas appeals in the 1990s is now “digging a little deeper,” says Terri Mascherin, a Jenner & Block lawyer who heads the American Bar Association Death Penalty Representation Project. “The only thing I can attribute it to, really, is the publicity in recent years of wrongful convictions of innocent people,” she says. “There had been a sense of complacency, but now they recognize serious flaws in the system. They have decided that if you are going to have the death penalty, it needs to be a fair system.” At the pro-death penalty Criminal Justice Legal Foundation, Legal Director Kent Scheidegger calls the Rompilla ruling “idiosyncratic,” and does not see any major shift in how the Court is handling death penalty cases. “It has nothing to do with innocence claims. These three murderers were guilty as sin.” CIVIL ACTIONS The Court’s civil rights rulings this term also reflected a more liberal trend. In Johnson v. California in February, the Court said the segregation of prisoners � even if motivated by safety concerns � should be subject to “strict scrutiny” review. And in three civil rights law cases, the Court opted for the more expansive interpretation, allowing more, not fewer, discrimination claims. “It was not a lovely trend” for businesses that have to defend against such claims, said Maureen Mahoney, head of the appellate practice at Latham & Watkins, at a U.S. Chamber of Commerce review of the term June 24. The three cases were Norwegian Cruise Lines v. Spector, in which the Court said the Americans With Disabilities Act covered foreign flag vessels; Smith v. City of Jackson, which allowed disparate impact claims under the Age Discrimination in Employment Act; and Jackson v. Birmingham Board of Education, in which the Court found that retaliation claims can be filed under Title IX in connection with sex discrimination in school sports. The Title IX case does not involve businesses, Mahoney said, but it and the others reflect a trend toward expanding the reach of civil rights laws. Mahoney can lay claim to the biggest victory for businesses this term. In Arthur Andersen v. United States, the Court unanimously ruled against the government’s approach to prosecuting witness-tampering in white-collar crime cases such as the one brought against Arthur Andersen for its role in the Enron scandal. This time Rehnquist wrote for the Court. “It eroded the government’s mantra that ignorance of the law is no defense,” said Mahoney. PRE-EMPTIVE STRIKEOUT But federal pre-emption � another Rehnquist Court doctrine embraced by business � suffered a blow in Bates v. Dow Agrosciences. The Court ruled that the federal law regulating insecticides did not prevent Texas peanut farmers from filing crop-damage claims in state court. The decision, if applied in other contexts, could expose businesses to litigation in state courts even when a federal regulatory regime exists, says Carter Phillips, appellate practice chief at Sidley Austin Brown & Wood. More generally, Phillips said at the Chamber briefing, “This is not a Court particularly interested in business cases.” So how can the Court’s behavior be explained? Florida International University law professor Thomas Baker, also a longtime Court watcher, has a theory. “The Rehnquist Court was never as far to the right as the Warren Court was far to the left,” says Baker. On the Warren Court, he says, “there were six liberal votes and they had a vote to lose, like an NBA team has a foul to give. It changes your strategy.” The Rehnquist Court, on the other hand, “maxed out at five conservative votes, and two of them were always in play.” Kennedy and O’Connor, in different areas of Court doctrine, have “mellowed, moved toward the middle,” as justices often do when they get older, Baker says. Stevens has been able to snag their votes with greater regularity. Returning to his basketball metaphor, Baker says this gradual shift can explain why the Court’s 2004-2005 term gave shorter shrift to Rehnquist’s doctrines. “Like in the NBA, again, you can’t run the fast break if you don’t have the numbers.” Tony Mauro can be contacted at [email protected].

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