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The conservative 4th U.S. Circuit Court of Appeals may, as some scholars and others contend, have helped set the agenda for the Supreme Court term that just ended. But it didn’t augur the outcome. The 4th Circuit, which includes Maryland, Virginia, West Virginia, North Carolina and South Carolina, sent nine cases to the high court in the 1999-2000 term. At the term’s end, five of the nine — including a challenge to the Miranda warnings and a key federalism case — had been reversed. The 4th Circuit was among four generating the most high court challenges this term. The justices took 10 cases from the 9th Circuit — the highest total — nine each from the 4th and the 5th, and eight from the 7th. But the 4th Circuit’s list attracted considerable attention because it included a large number of high-profile, potentially divisive cases: two of the term’s five federalism challenges; a serious threat to the viability of the Miranda decision; the federal government’s battle to regulate tobacco; and a key environmental challenge. MIXED BAG In the end, the justices handed the circuit something of a mixed bag. They voted unanimously to reverse the circuit’s ruling that the federal Driver’s Privacy Protection Act unconstitutionally coerced states into administering a federal program, but voted 5-4 to affirm the circuit’s decision striking down the civil damages remedy in the Violence Against Women Act because the justices found that it exceeded Congress’ lawmaking power under the commerce clause and Sec. 5 of the 14th Amendment. The high court also affirmed, 5-4, the circuit’s ruling that the Food and Drug Administration lacked authority to regulate tobacco, but it reversed, 7-2, the circuit’s very restrictive view of citizen suits under federal environmental laws. And in Dickerson v. U.S., No. 99-5525, again voting 7-2, the justices rebuffed the circuit by refusing to replace Miranda with a federal statute providing less protection under the Fifth Amendment. Judge Karen J. Williams wrote four of the nine decisions taken up by the high court. She had three reversed. Professor A.E. Dick Howard, of the University of Virginia School of Law, calls the 4th Circuit “bold but not activist.” The court takes and decides big issues, he explains. But he expressed surprise at the number of reversals. “I’ve been struck by the fact that year after year they have been uncommonly successful in capturing the Supreme Court’s prevailing mood,” he said. “This term, they helped set the justices’ docket but not the result.” Of all the cases it sent to the high court, the circuit was “most exposed” to potential reversal in the Miranda challenge, according to the professor, because of its willingness to decide an issue raised, not by the parties, but in an amicus brief, and to tackle an area many thought was settled more than 30 years ago. DEATH CASE RECORD The high court also handed the circuit a mixed record in four death cases, upholding two and reversing two. But the two reversals came in major habeas rulings under the 1996 Antiterrorism and Effective Death Penalty Act that, had they gone the other way, “would have ended habeas corpus as we know it,” said habeas scholar Ira Robbins, of American University Washington College of Law. “It seems to me the 4th Circuit has reached out in the habeas area in an effort to push the envelope, to make the Supreme Court even more restrictive than it has been,” he said. “The message the Supreme Court appears to be sending them is simply that they’ve gone too far.” Still, the 9th Circuit continues to be the high court’s “bad boy.” The justices reversed or vacated and remanded nine of the circuit’s 10 rulings. But that circuit’s cases — heavily criminal — did not yield any of the term’s top decisions.

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