X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In a just-ended term of extraordinary breadth, the U.S. Supreme Court refined law, pushed it in new directions, secured old moorings and dramatically reminded the nation of its own institutional importance. It’s difficult to think of an issue on the public-political agenda in the past few years that did not crowd the high court’s small but potent docket this term: abortion, school prayer, grandparents’ rights, gay Boy Scout leaders, health maintenance organizations, job discrimination — the list went on and on. Was it a historic term, with many landmark rulings? Some scholars and other court watchers say only time will tell, as the lower courts apply what the justices have done in key areas of the law. But, they say, it was a term for the history books because of the sheer number of important rulings and the way in which they were reached — without the level of rancor that such divisive questions normally generate and without one ideological side prevailing in all cases. “Every once in a while, it seems like the cert. petitions at the court line up like the planets, and we have lots of high-profile cases,” says Professor Thomas E. Baker, director of the Constitutional Law Resource Center at Drake University Law School. “But the court did not pursue a radical approach to constitutional interpretation. “It would have been a radical term if all the issues had broken one way or another, but it was a mixed bag, with some liberal and some conservative results. Miranda was not only reaffirmed, but reaffirmed in an opinion by Chief Justice Rehnquist. Who would have thought it?” Chief Justice William H. Rehnquist had previously voiced disapproval of the Miranda decision. If people can look at the term and say the justices dealt with speech, religion, federalism and important political subjects such as the regulation of tobacco, and “out of all of it, there was not a war of ideology,” then the term was historic, says Professor Douglas Kmiec, of Pepperdine University School of Law. “It’s historic from the standpoint of strengthening the legitimacy of the court,” he says. “I think their institutional standing, with the exception of the two abortion-related cases, was enormously enhanced this term.” That’s not to say there were no fireworks among the justices. On the term’s last day — a day that historically produces some of the biggest and most difficult decisions for the justices — stinging, emotional dissents were read from the bench in the two abortion-related cases — Stenberg v. Carhart and Hill v. Colorado. But the Rehnquist Court conveys the sense of a mature court in many ways, not the least of which is that the written vitriol is confined to exactly that — written vitriol. “All of the justices have had a good number of years of service now,” says Kmiec. “That means they are a fair distance from their confirmations and political origins. The farther they get from that the less ideologically driven they are. There still are strong divisions, but most of the justices meld into being part of a collegial body.” LOW NUMBERS Try wrapping your arms around the term that just ended and it would seem to be an easy task. The justices ruled in 74 cases — the fewest in nearly five decades. Although the small number is notable, it also is within the range that the justices seem to have found comfortable in recent years, notes veteran high court advocate Mark Levy, of Washington, D.C.’s Howrey Simon Arnold & White. “I don’t think the court is deliberately cutting down further on its docket,” he says. “It seems to have settled into this range of 70 to 80 cases.” Although the total number of decisions was down, the number of sharply divided decisions was up. The court split 5-4 in 20 cases, up from 16 the previous term — and nine of these were criminal decisions. The 5-4 splits also included some of the term’s most closely watched challenges, including federal regulation of tobacco ( FDA v. Brown & Williamson); the exclusion of gay leaders by the Boy Scouts (Boy Scouts of America v. Dale); a federalism challenge to the civil damages remedy in the federal Violence Against Women Act ( U.S. v. Morrison) and the so-called partial-birth abortion challenge ( Stenberg v. Carhart). And although the term was notable for both its liberal and conservative outcomes in high-profile cases, the 5-4 splits show clearly which wing of the court controls the most narrowly decided cases. In 13 of the 20 splits, the majority included Chief Justice Rehnquist and justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. The court’s more liberal wing — justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer — prevailed as a group in only one of the 20 cases, Stenberg (with the help of Justice O’Connor). SHIFTING ALLIANCES The remaining majorities were formed from shifting and sometimes surprising alliances. O’Connor, who has been the court’s swing vote ever since the retirement of Justice Lewis F. Powell Jr., was in the majority in 17 of the 20 splits, and she wrote four of the majority opinions. The chief justice, in the majority in 15 of the cases, wrote the most majority opinions in this category, five. “The Rehnquist Court may go down in history as the Warren Court that didn’t quite have the six sure votes,” says Baker. “Rehnquist has five votes, and they’re mostly sure votes but not always, and it’s one shy of a kind of supermajority that would turn the court into the historic analog of the Warren Court.” The chief justice, long judicious in parceling out writing duties to his colleagues in the more interesting and important cases, took the lead this term in writing more of those decisions than any of his colleagues. He wrote two of the term’s five federalism rulings — striking down the civil remedy in the Violence Against Women Act ( Morrison) and upholding the federal Driver’s Privacy Protection Act ( Reno v. Condon). He authored the opinion reinforcing the constitutional basis of the Miranda warnings by striking down a federal law intended to reverse that Fifth Amendment landmark ( Dickerson v. U.S.), and he led the majority that upheld the Boy Scouts’ First Amendment expression right to exclude gays as scout leaders. The chief’s judicial soulmate this term was O’Connor, who agreed with him in 93 percent of the term’s rulings. He and O’Connor cast the fewest dissenting votes in the term — 9 and 4, respectively. Stevens, on the other hand, continues to log the highest number, 28. The law can be moved in different ways, says Howrey Simon’s Levy, a former assistant to the solicitor general and head of the Justice Department’s Civil Appellate Division. Several of those ways were evident in the term just ended. “There were a lot of important decisions that resolved conflicts in the circuits but which were really lawyers’ issues,” he says. For example, the circuits had split on what kind of proof an employee bringing an age discrimination claim must provide to prevail with a jury: a prima facie case plus evidence that the employer’s reason for the adverse job action was pretextual, or all of that plus direct evidence of discriminatory motive. In Reeves v. Sanderson Plumbing Co., a unanimous court said that direct evidence is not necessary. A jury can infer discrimination from proof that the employer’s reason was not the real one. “The way most of us read [the court's precedents] — and the way the lower courts certainly did — was once you have a prima facie case of discrimination and the employer offers its justification, the employee not only had to negate the justification but produce additional evidence of discriminatory motive,” says labor law scholar Charles Craver, of George Washington University National Law Center. “Reeves reverses that presumption, and I think it’s the correct approach. Courts failed to appreciate the subtleness of discrimination today.” In Geier v. American Honda Motor Co., a 5-4 court held that local tort suits over the lack of an airbag in certain early automobiles were pre-empted by federal law and regulation. That ruling will affect thousands of similar lawsuits, and its pre-emption analysis may have a spillover effect in other areas of federal regulation. And even though the high court’s ruling reaffirming the constitutional moorings of the Miranda warnings did not make “one whit of difference in terms of substantive criminal law,” says Levy, it did “move” the law in another sense. “Dickerson was very significant both in its public dimension — a reaffirmance of the warnings — and jurisprudentially in terms of the court’s view of itself and its role and its relationship to Congress,” he says. In Dickerson, the chief justice reminded Congress through a reference to a 1997 precedent — City of Boerne v. Flores — that it is the Supreme Court, not Congress, that interprets the scope and meaning of the Constitution, and that the court’s interpretation cannot be overturned by a federal law. “Rehnquist does have a kind of a stewardship ethic for the court,” says Kmiec. “So when a decision like Dickerson must be written, and it’s probably one he doesn’t share deeply, but given the fact the warnings had become so much a part of the constitutional landscape, he felt there was an institutional obligation only he could represent.” EARTH MOVED There was significant development of the law in two key areas: federalism and the First Amendment establishment clause. Of the five federalism-related challenges on the docket, the most significant ruling came in U.S. v. Morrison, the Violence Against Women Act case, in which a 5-4 court held that Congress exceeded its commerce clause power when it enacted the civil damages remedy for victims of gender-based violence. The five-justice majority built on its 1995 precedent in U.S. v. Lopez, which struck down the federal Gun-Free School Zone Act. The court had found that it, too, had only a tenuous link to interstate commerce. Morrison revealed that even carefully documented congressional findings of the impact on interstate commerce of gender-based violence would not save the statute. “The touchstone in Morrison is economic regulation, and reasonable minds can differ on what that means,” says Levy. “I don’t think it’s clear yet where the court is going to come out on this. But it is very important to the business community in particular. So much of federal regulation rests on the federal commerce clause power.” Kmiec agrees. “The court hasn’t quite given us a definition of commerce but has said if you have a regulation that doesn’t deal with economic activity, you can’t make up for that with a jurisdictional requirement or legislative inferences,” he says. “That’s movement from Lopez. And for Rehnquist, that’s not just a stewardship role, but a personal calling.” Three of the chief’s supporters in his recalibration of the balance of power between the national and state governments had his support in the second key development in constitutional law: Mitchell v. Helms. A 6-3 court, in a plurality opinion, upheld a federal program providing computers and other aid to public and nonpublic schools. For four justices — Thomas, Scalia, Kennedy and Rehnquist — there is no establishment clause problem when government provides assistance in a neutral and nondiscriminatory fashion to religious and nonreligious schools, even if the aid is diverted later to religious purposes. O’Connor, in a concurring opinion joined by Breyer, would not go that far and thought that there must be protection against diversion. The ruling was a boost for advocates of school vouchers, but they still must be concerned about winning the votes of justices O’Connor and Breyer. In both the federalism and establishment clause areas, the court is likely to see more litigation, and eventually more cases at its doorstep, as a result of this term’s rulings. Levy notes other interesting trends or themes during the past term. “I think the court, in quite disparate areas, reinforced notions of privacy this term,” he says. For example, in Boy Scouts of America v. Dale, he says, the justices, by upholding the right of the Scouts to exclude gay leaders, reinforced the notion of private association. In California Democratic Party v. Jones, a 7-2 court reaffirmed the constitutional right of individuals to associate privately to further their own political interests. In Stenberg, he notes, Nebraska’s partial-birth abortion ban was struck down as an undue burden on a woman’s constitutional right to choose abortion, and in Reno v. Condon, contrary to its federalism trend, a unanimous court upheld a federal statute designed to protect the privacy of information on drivers’ licenses. In a First Amendment challenge, a 7-2 majority upheld a California statute whose purpose is to protect privacy by limiting access to arrest records. Los Angeles Police Department v. United Reporting Publishing Co. Others would add to Mr. Levy’s list Troxel v. Granville, in which the justices found unconstitutionally broad a Washington state law allowing third parties virtually free rein to seek visitation rights with children over their parents’ objections. And Levy says that the high court may be preparing to limit the scope of its traditional deference to agency actions, as signaled by the government’s defeat in its attempt to regulate tobacco — Food & Drug Administration v. Brown & Williamson — and a case involving compulsory overtime under the Fair Labor Standards Act, Christensen v. Harris County. A DEFENSIBLE TERM On the whole, the term is quite defensible whether you stand on the liberal or conservative side, say Kmiec and others. “You may disagree on Miranda, the contours of the right of association, the scope of sovereign immunity and the definition of federal power,” says Kmiec. “But the disagreements and agreements are all a matter of emphasis, and you could see how these cases could come out in either direction.” And on the eve of a presidential election, he and others say, that is a good thing from both court and public perspectives. Voting Alignments on the Supreme Court

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.