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In January, the Supreme Court was invisible. All nine justices stayed away from the State of the Union address-some because of illness, most because of a rumored reluctance to be props in the political spectacle, especially in an election year. In June, the Supreme Court was everywhere, lobbing bombshell opinions on abortion, school prayer, the Miranda warning, and gays in the Boy Scouts. So where will the Court be by November — invisible again or front-page fodder for the presidential campaigns of two candidates desperately seeking ways to differentiate themselves? It could go either way — a reflection of the basic paradox of the Rehnquist Court. Self-consciously absent from the political fray on the one hand, the Court nonetheless unavoidably — and sometimes enthusiastically — mixes it up on the hot-button issues of the day. The recently concluded term put that dynamic on display. At one point this spring, it seemed that the Supreme Court was the place where every major news event punched its ticket, from the Microsoft breakup to Elian Gonzalez’s return to Cuba, to George W. Bush’s death penalty travails. That confluence of big decisions and unavoidable appeals made it seem possible that for the first time in decades, the composition of the Supreme Court, which has been a perennial nonstarter in presidential elections, will ignite this time. Many commentators — and even Justice Clarence Thomas at a recent private event — are predicting as many as three vacancies in coming years. Conservatives angered by the justices’ disapproval of prayer at public school football games and of “partial-birth abortion” bans are mobilizing for George W. Bush on a “No more Souters” theme. The targeting of David Souter, who has proven to be disappointingly liberal to Republicans, is ironic: He was appointed by Bush’s father. By the same token, the closeness of the vote striking down Nebraska’s “partial-birth abortion” law in Stenberg v. Carhart — 5-4 with the defection of Anthony Kennedy from the solid abortion-rights camp — could energize pro-choice forces on the justice-picking issue. A recent Field poll found that 81 percent of California voters view the appointment of justices as “very important” in their choice for president. “You only need one or two new justices to make a very big difference,” says Elliot Mincberg, legal director of People for the American Way Foundation, which plans a big education campaign around the Supreme Court before the November election. “People are very interested in finding out more.” But the Court, whether by design or not, may have neatly managed to neutralize voter enthusiasm by offering up decisions in the term just ended that have pleased and angered conservatives and liberals alike. In many ways, the current Court is a conservative institution whose rulings display moderate or even liberal bottom lines — not an easy target for election-year slogans or bumper stickers. When Presidents Ronald Reagan and George Bush filled the Court with seeming conservatives, few would have predicted a majority would strike down a so-called partial-birth abortion law ( Stenberg v. Carhart), uphold the Miranda legacy of the Warren Court ( Dickerson v. United States), and thwart a careful campaign to permit prayer at Texas high school football games ( Santa Fe Independent School District v. Doe). “Democrats will have a hard time mobilizing their voters against the Court when the conservatives lost this year,” says John Roberts Jr., Supreme Court expert at Hogan & Hartson. “They may say, what’s the point?” Even in the criminal law area, traditionally a conservative priority, the Court handed down several decisions that angered law enforcement. “It was a very good year to be a criminal defendant before the Supreme Court this year,” says Roberts. Bond v. United States and Florida v. J.L expanded Fourth Amendment protections against unreasonable searches; Apprendi v. New Jersey may trigger widespread challenges to criminal sentences; and United States v. Hubbell was a significant Fifth Amendment defeat for prosecutors. On First Amendment issues, too, the dividing lines are scrambled. In the major free speech cases of the term, notes Roberts, conservatives Thomas and Antonin Scalia most often supported the First Amendment claim, while moderate Breyer most often opposed it. “I’m waiting to read stories about what Breyer’s problem is with the First Amendment,” Roberts said at a Washington Legal Foundation briefing. “The Court overall is surprisingly moderate on substantive rights,” says Erwin Chemerinsky, professor at the University of Southern California Law School. “But on the structure of government, they are quite conservative.” That explains why the Court struck down, without an ounce of regret, portions of the Violence Against Women Act that allowed women to sue their attackers in federal court. Congress had larded the record with voluminous data linking gender violence to interstate commerce, but the Court swept it aside in United States v. Morrison. Structurally speaking, the Court said Congress had overstepped its bounds and hijacked a problem that should be handled by the states. Women’s groups were angered. But it was the same sort of border policing that caused the Court to hand down a decision last week that delighted liberals — Dickerson v. United States, rejecting an effort by Congress, albeit one that had been essentially freeze-dried for 32 years, to undermine the Court’s decision in Miranda v. Arizona. Congress in 1968 passed a law that sought to replace the strict Miranda requirement with a broader “totality of the circumstances” test for whether a confession is voluntary. Nothing doing, said Chief Justice William Rehnquist-putting himself in the unexpected posture of defending Miranda, a decision he has been criticizing for more than 25 years. Some saw in Rehnquist’s opinion signs of mellowing, a late-in-life concern for his legacy as chief justice. “He sees things differently, less individually, as chief justice than he saw them as the Lone Ranger associate justice,” says Drake University Law School Professor Thomas Baker. “He can allow Scalia and Thomas to stake out the extreme positions and then tack towards the center to lead the institution.” But Rehnquist’s shift is not likely the result of any newfound affection for Miranda. He probably still dislikes the decision, but he likes Congress trying to tinker with the Court’s view of the Constitution even less. “The real focus of the Court this term was regulation of Congress,” says Eugene Volokh of University of California at Los Angeles School of Law. Similar impulses may be behind the Court’s continued federalism march in the term just ended. In Kimel v. Florida Board of Regents, the Court said the Constitution does not permit states to be subjected to federal age discrimination lawsuits. In Jones v. United States, the Court said the federal arson law cannot be read to apply to house arsons, which it described as a “paradigmatic common-law state crime.” In the Morrison case too, the Court sought to keep Congress out of state law enforcement. “It’s not a love of the states that is motivating these decisions — it’s the Court’s view of Congress,” says former Solicitor General Walter Dellinger, a partner in the D.C. office of Los Angeles’ O’Melveny & Myers. “States are just the stick that the Court is using to beat Congress over the head with.” One piece of evidence: States lost all of this term’s major pre-emption cases, with the Court’s rulings that congressional enactments trump the states on tanker regulation ( United States v. Locke), railroad crossing safety ( Norfolk Southern Railroad v. Shanklin), airbag rules ( Geier v. American Honda Motor Co.), and foreign policy ( Crosby v. National Foreign Trade Council). And in Reno v. Condon, the Court upheld the Driver’s Privacy Protection Act, a federal law that many thought would fall on federalism grounds. Dellinger also notes that the Court was not especially deferential toward states in Troxel v. Granville, when it struck down a Washington state statute allowing broad third-party visitation in child custody disputed. Congress was not the Court’s only target. The executive branch, in the form of the Food and Drug Administration, got put in its place in FDA v. Brown & Williamson Tobacco Corp., which said the agency could not assume jurisdiction over tobacco. “The Court has placed itself at the center of the constitutional universe,” says Dellinger. Whether the voters perceive that — or care — by November remains to be seen.

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