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Ruling in the smallest number of cases in years, the Supreme Court managed to pack a tremendous punch in its 74-case docket this term. What follows is an analysis of the justices’ decisions on key issues of the day and in significant areas of the law, including cases on abortion, criminal and family law, First Amendment concerns, and federalism issues. ABORTION: CLOSE CALL Abortion is one of those issues that creates its own category of law, and it has split the Court and country into bitter camps ever since Roe v. Wade. This term, Stenberg v. Carhart brought abortion back to the Court for the first time since 1992, when a 5-4 majority upheld a woman’s constitutional right to an abortion in Planned Parenthood v. Casey. In Stenberg, the Court was again split 5-4, holding that Nebraska’s broad ban on the so-called partial-birth abortion procedure posed an “undue burden” on a woman’s right to have an abortion and was unconstitutional. Because the law could also be read to outlaw other types of pre-viability abortion procedures, the majority said that “all those who perform abortion procedures using that method must fear prosecution, conviction and imprisonment.” Justices Stephen Breyer, Ruth Bader Ginsburg, Sandra Day O’Connor, David Souter, and John Paul Stevens made up the majority; Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas dissented. Kennedy’s vote was a surprise, considering he was one of the architects of the Casey decision that that saved Roe from being overturned. He accused the majority of a “basic misunderstanding” of Casey that gives states too little deference in fashioning abortion regulations. -Jonathan Ringel FIRST AMENDMENT; FREE ASSOCIATION The Supreme Court can go for years, if not decades, without ruling on cases that test the First Amendment’s infrequently invoked protection of the freedom of association. But this term, the Court ruled on three cases that involved associational rights — one segment of an unusually large and varied First Amendment docket. The most contentious was decided by a 5-4 vote on June 28, the final day of the term. In Boy Scouts of America v. Dale, the Court said the “expressive association” rights of the Boy Scouts would be infringed if states could force the organization to accept homosexuals under laws prohibiting discrimination in public accommodations. The victory for the Boy Scouts may have been foreshadowed two days earlier in California Democratic Party v. Jones, which struck down California’s blanket primary system. As with the Scouts, the Court embraced the rights of political parties to decide with whom they want to associate — and not associate. On March 22, the Court looked at freedom of association in a seemingly contrary way, ruling that state universities could compel students to pay a fee that funds organizations they may disagree with. The ruling in Board of Regents of the University of Wisconsin System v. Southworth did say, however, that the distribution system for the funds has to be viewpoint-neutral and should not be subject to majority vote. The justices also handed down major rulings on the First Amendment’s establishment clause. In Santa Fe Independent School District v. Doe, the justices decided on June 19 that prayers at Texas public school football games had an impermissible stamp of government endorsement, even though they were led by students. But on June 28, the justices seemed more favorable toward government accommodation of religion, favoring a federal program that lends equipment to parochial schools in Mitchell v. Helms. The ruling benefits children no matter what school they attend, said Justice Clarence Thomas. But it “blasts a hole” in the wall of separation between church and state, said Phil Baum, executive director of the American Jewish Congress. The Court also took another stab at the First Amendment issues at play in campaign finance reform. Ruling in Nixon v. Shrink Missouri Government PAC on Jan. 24, the Court stuck with the basic framework of the 1976 case Buckley v. Valeo, upholding a state limit on campaign contributions. But Harvard Law School Professor Laurence Tribe said the separate opinions of Justices Kennedy and Breyer contained “enough hints to encourage those who want to see the Court’s Buckley v. Valeo jurisprudence undergo a serious re-examination.” The Court made other First Amendment news on the final day of the term. By a 6-3 vote, Hill v. Colorado upheld a state law that restricts uninvited communications within eight feet of people near medical facilities. Justice Stevens’ rationale for upholding the law — privacy and the right to be free from unavoidable and unwanted messages — drew strong criticism from the dissenters. Justices Scalia and Kennedy said the ruling in a case driven by abortion protests sharply contradicted a half-century of First Amendment doctrine, which gives more weight to the individual right to speak than to the reaction of the listener. Finally, the Court ruled in two cases of the sort that former Independent Counsel Kenneth Starr once joked were the favorite of the Supreme Court law clerks — nude dancing and indecent cable programming. In City of Erie v. Pap’s A.M., the Court on March 29 upheld a city ordinance banning public nudity. But in United States v. Playboy Entertainment Group on May 22, the justices struck down a federal law that sharply restricted adult cable programming as a way of keeping unsuspecting viewers from seeing blurred adult video and hearing audio on adjacent channels. -Tony Mauro BUSINESS: ECHO CHAMBER While tobacco companies and health maintenance organizations have continued to absorb political attacks, they won critical victories at the Supreme Court this term. The Court shielded cigarette makers from food and drug regulations and gave HMOs protection from certain lawsuits. But FDA v. Brown & Williamson and Pegram v. Herdrich weren’t the only big wins for big business. The Court also: � Struck down a Massachusetts law effectively banning state contracts for companies doing business with human rights pariah Burma ( Crosby v. National Foreign Trade Council); � Refused to extend state court liability to car manufacturers in airbag suits or to railroads in crossing accident cases ( Geier v. American Honda Motor Corp. and Norfolk Southern Railroad Co. v. Shanklin); and � Said trade dress law did not prevent Wal-Mart from selling knockoff designs of children’s clothing ( Wal-Mart Stores v. Samara Bros.). “It was generally a good term for us,” says Stephen Bokat, senior vice president and general counsel for the U.S. Chamber of Commerce. The group, which represents 4,000 state and local chambers of commerce and 140,000 individual members, filed amicus briefs on behalf of the winning business interests in the HMO, Burma, and airbag cases. In those three cases, plus the railroad case and another dispute involving regulation of oil tankers ( United States v. Locke), the justices sided with the businesses in ruling that federal law pre-empted state laws. But in other arenas, the court has shown a strong states’ rights streak. “We had some concerns,” says Bokat, with regard to the federalism issues. “We were wondering if they were backing away” from federal pre-emption as they struck down acts of Congress regulating the states in areas such as violence against women, age discrimination, and patent law. Business interests didn’t win them all, however. In Reeves v. Sanderson Plumbing Products Inc., all nine justices decided that workers can win employment discrimination suits even without direct proof that their bosses acted with discriminatory intent. The ruling also made it more difficult for appeals courts to second-guess jury verdicts in all kinds of civil cases. “The Court has pretty consistently given the benefit of the doubt to plaintiffs,” says Bokat, whose group counted Reeves as one of the three where it filed an amicus brief but lost. The Chamber also lost a decision allowing citizens to sue a hazardous waste incinerator for polluting a river even after the company had begun complying with the Clean Water Act ( Friends of the Earth v. Laidlaw Environmental Services) and one granting False Claims Act plaintiffs standing to sue on behalf of the United States ( Vermont Agency of Natural Resources v. United States). Jeffrey White, one of Bokat’s adversaries at the Association of Trial Lawyers of America (ATLA), says the term “wasn’t a ringing success.” Indeed, in the five cases in which the trial lawyers filed amicus briefs, their side lost four times; Reeves was the group’s only win. ATLA supported the losing side in the airbag and railroad cases and another challenging an appeals court’s right to reverse a plaintiffs jury verdict. The trial lawyers also sided with the losing plaintiff in United States v. Morrison, in which the Court struck down a portion of the Violence Against Women Act as an encroachment on states’ rights and a misuse of the commerce clause. As big as the business wins were, Bokat of the Chamber of Commerce says the best thing that happened this term was the Court’s grant of certiorari in a case surrounding the Clean Air Act. In April, the justices said they would decide whether, among other things, the Environmental Protection Agency should factor in a company’s costs in evaluating whether it is complying with the Clean Air Act. The Chamber is a party in the case, on the side of the trucking groups suing the EPA ( American Trucking Associations v. Browner). White of ATLA says he is looking to the Court’s review of two cases testing the limits of a federal arbitration enforcement act. White says the act was meant to be applied only in business-to-business cases, not in labor or consumer disputes ( Green Tree Financial Services v. Randolph and Circuit City Stores v. Adams). -Jonathan Ringel CRIMINAL LAW: A HEAVY LOAD The Supreme Court’s reaffirmation of Miranda warnings dominated the headlines ( Dickerson v. United States). But more than one-third of the Court’s decisions dealt with crime and punishment. The Court issued 27 other decisions affecting everything from when the police can stop a suspect on the street to how a federal court must review appeals of death sentences. (The justices were also set to rule on whether Florida’s electric chair was constitutional, but the state changed its execution method to lethal injection, rendering the case moot.) Overall, the Court granted victories to prosecutors and state officials 17 times; criminal defendants and inmates won 11 times. To be sure, such statistics don’t tell the whole story. Take, for example, the case of Williams v. Taylor. Terry Williams, a convicted murderer sentenced to death, won a new sentencing trial because the Court found, 6-3, that his lawyer had not mounted an adequate defense at sentencing. While that was a clear victory for Williams, the Court’s interpretation of federal judges’ responsibilities in reviewing state court judgments in capital cases is much more murky. By a 5-4 count, the Court rejected a ruling by the 4th U.S. Circuit Court of Appeals that said federal judges could overrule state courts only if all “reasonable jurists” agreed the state court ruling was unreasonable — a standard critics said would have effectively ended federal review of state court judgments. Instead, Justice Sandra Day O’Connor stuck to the literal language of the 1996 Anti-Terrorism and Effective Death Penalty Act, writing that federal courts could vacate a conviction or sentence only if a state court ruling was “contrary to” or an “unreasonable application” of federal law. Defense groups were pleased that the court rebuffed the 4th Circuit, while law enforcement groups hailed the decision as upholding the 1996 law. James Liebman, a Columbia University law professor who wrote a study finding serious flaws in the death penalty system, called the ruling “incredibly important.” “It’s the first time they said [federal judges] had to defer to anybody,” Liebman said. Michael Rushford of the pro-law enforcement Criminal Justice Legal Foundation liked the Williams decision, as well as several others: Despite the loss in Dickerson, he says, “the preponderance of the evidence was we did well” this term. Along with Williams, Rushford cited another death penalty appeal, Weeks v. Angelone, as a law enforcement victory, albeit a close call. In Weeks, the Court voted 5-4 to uphold the death sentence of a car thief who had murdered a state trooper. During sentencing deliberations, the jury asked the judge whether the law required a death sentence if it found an aggravating circumstance, or whether the jury had discretion to issue a life-in-prison sentence. The law gave the jury such discretion. But rather than answer the question specifically, the judge referred the jury to his previously issued instructions — a move the split Court upheld as constitutional. Since those jury instructions had been used in numerous capital cases around the country, Rushford said, one vote in the other direction could have prompted new sentencing hearings for 10 to 15 years’ worth of capital cases. The same five-justice majority — comprising Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas — came together in Illinois v. Wardlow to hold that police may stop someone whose only suspicious act was running away at the sight of police while in a “high crime” area. What constitutes a high-crime area “will be hard to prove,” said William & Mary’s Marshall Wythe School of Law Professor Kathryn Urbonya, who predicted further litigation over that definition. Another case that may prompt more questions than it answered was Apprendi v. New Jersey. It was yet another 5-4 ruling, though not divided along the Court’s typical ideological lines. Justices Stevens, Ginsburg, Souter, Scalia, and Thomas formed the majority; Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Breyer dissented. The majority ruled that the Garden State’s hate-crimes statute violated the 14th Amendment’s due process clause because it allowed a judge to decide, by a preponderance of the evidence, that Charles Apprendi was motivated by racial hatred when he fired his .22-caliber gun into the home of his neighborhood’s only black family. Such a ruling must be made by a jury, the Court held. The dissenters complained that the Court had foisted virtually all sentencing decisions on juries, a result that could spur years of challenges to sentencing enhancements. The justices issued more clear rules regarding police powers in two Fourth Amendment cases. In Florida v. J.L., the Court ruled unanimously that police may not stop and frisk someone based solely on an anonymous tip. In another Fourth Amendment case, Bond v. United States, the Court ruled 7-2 that police may not, without probable cause, squeeze luggage on an overhead compartment to search for drugs. “It’s a curious mix of cases,” says Ronald Allen, a professor at Northwestern University School of Law. Allen thinks the most important decision came in United States v. Hubbell, a case considered by many as a mere after-effect of the Whitewater investigation. An 8-1 Court ruled that the government could not use documents it gathered from former Justice Department official Webster Hubbell under the promise of immunity to indict Hubbell with tax fraud. The decision’s Fifth Amendment analysis, Allen says, “suggests there may be serious constraints on the government’s right to use the contents of documents turned over in response to a subpoena.” -Jonathan Ringel FAMILY: MOTHER KNOWS BEST Troxel v. Granville, in which a 6-3 Court voted to strike down a Washington state law allowing “any person” to petition for visitation rights with a child, illustrated as much as anything that the Court’s docket was jam-packed with social issues this term. It also showed that the Court’s ideological camps do not always stick together. Moderate O’Connor teamed up with liberals Breyer, Ginsburg, and Souter and conservatives Rehnquist and Thomas to rule that the Washington law violated a mother’s due process rights to make decisions about her daughter’s custody. The dissenters — Scalia from the right, Kennedy from the middle, and Stevens from the left — supplied varying reasons: Scalia would have left the issue to state legislatures; Kennedy objected to the assumption that third parties who seek visits with a child have no legitimate relationship with the child; Stevens wrote that due process leaves room for states to consider the impact on a child of possibly arbitrary parental decisions that neither serve nor are motivated by the child’s best interests. -Jonathan Ringel FEDERALISM: TUSSLING WITH CONGRESS For years, it was hard enough for legislators on Capitol Hill to turn a bill into law, what with prickly committee chairmen, partisan floor fights, and the threat of presidential vetos blocking the way. Now the biggest problem may be the black-robed neighbors across the street. The justices struck down four acts of Congress this year, raising the kill total to an astounding 24 since the 1994-95 term. In two cases, Playboy and Dickerson, the justices struck down laws based on First and Fifth Amendment principles, respectively. The remaining two victims were more in line with other recent federalism decisions: � The Age Discrimination in Employment Act, held unconstitutional by a 5-4 vote because states’ sovereign immunity does not allow even victims of age discrimination to sue the states ( Kimel v. Florida Board of Regents); � The Violence Against Women Act, a portion of which was struck down by a 5-4 vote because Congress’ right to regulate interstate commerce does not include allowing women to sue their abusers in federal courts ( United States v. Morrison and Brzonkala v. Morrison); A unanimous Court prevented another federal law, one prohibiting arson, from being used against a man who had bombed a residence. The justices’ reason: Burning someone’s home didn’t affect interstate commerce, one of the justifications for the federal law ( Jones v. United States). “Federal power is not universal,” says Donald Falk, a D.C.-based partner at Chicago’s Mayer, Brown & Platt, who successfully argued Jones. Falk says the Court’s aggressive policing of Congress is part of a 35- to 40-year trend, one that stems from “direct attacks on state sovereignty.” Johnny Killian, a lawyer at the Congressional Research Service, says the trend has lasted since the New Deal, but takes the opposite approach of Falk when considering the Court’s tough take on Congress. “It’s the result of judicial activism,” says Killian, invoking what has become a four-letter word in constitutional law conversations. The Court wasn’t completely anti-Congress this term. In Reno v. Condon, a unanimous Court upheld the federal Driver’s Privacy Protection Act of 1994, which limits how states can sell driver’s license information. The justices found the law properly invokes the commerce clause and does not run afoul of federalism principles. “That was an odd one,” says Killian, suggesting the Court went easy on Congress because of an interest in protecting citizens’ privacy. -Jonathan Ringel

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