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For better or for worse, the 2000-2001 Supreme Court term will go down in history for Bush v. Gore, the decision that secured the Bush presidency. But, as only the law loves anomalies, the term’s decision with the greatest political and public impact ultimately may be among the rulings having the least legal impact. In Bush v. Gore, the justices held, 7-2, that Florida’s vote-recount procedures violated equal protection principles, but they split, 5-4, in ruling essentially that there was no time left to correct the problems. If the majority is taken at its word — that the justices were deciding just this case for this time only — then the decision will have little life beyond the 2000 presidential election. Some litigators, of course, are not taking the Court at its word, as seen in a spate of recent lawsuits using Bush v. Gore as a basis for challenging voting procedures in a number of localities. Only time and the Supreme Court itself will reveal whether the term’s most controversial decision has legs. Once you put aside what one high court advocate calls “the elephant at the dinner party,” the term was unlike the one immediately preceding it — a blockbuster because of the large number of high-stakes challenges — and more like the usual Supreme Court term. In the term that just ended, the justices decided a number of significant issues but few, if any, landmark or blockbuster decisions, says veteran advocate Mark I. Levy of Washington, D.C.’s Howrey Simon Arnold & White. “This term seemed less interesting, less substantive, less momentous,” adds Levy, a former assistant to the solicitor general and head of the Justice Department’s civil appellate division. “This is more the norm.” Overall, the 2000-2001 term offered continuity and surprise: continuity in the conservative majority’s ongoing work in certain areas, such as federalism, and surprise in unusual alliances among the justices that led to unpredictable results, most notably in the criminal and civil rights arenas. One way of viewing a Supreme Court term, although certainly not a definitive way, is a by-the-numbers snapshot. The justices issued decisions in 79 argued cases, a slight increase over the prior term’s 74. Most Court experts agree that the high court has now settled into 70 to 80 cases per term and is unlikely to return to the days in which it decided 150 or more. 5-4 DECISIONS Along with the increase in the number of decisions last term came a rise in the number of cases decided by a 5-4 vote. The justices split, 5-4, in 26 cases last term compared to 20 in the 1999-2000 term. Of the 26 cases, the conservative majority of Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas was again dominant. A 5-4 majority containing these five justices prevailed in 14 cases (13 of 20 in the prior term). Unlike the prior term, however, the Court’s more moderate wing — Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer — captured the majority in eight of the 26 cases. They were able to prevail in only one of the 20 split decisions in the 1999-2000 term. The difference for the moderate wing, as always, was O’Connor and Kennedy. The two justices appeared most often in the 5-4 majority — 20 of the 26 cases. O’Connor crossed over to the moderate wing in five cases, and Kennedy in three cases. It’s difficult to glean from the substance of the 5-4 rulings any particular patterns or trends. The Court’s federalism rulings almost always produce 5-4 votes, with the conservatives winning. That was the case again last term in Board of Trustees of the University of Alabama v. Garrett, in which the majority held that state employees can’t sue their employers for violations of the Americans With Disabilities Act. In the term just ended, O’Connor and Kennedy helped the moderate wing prevail in three immigration rulings against the government; two First Amendment decisions, one striking down restrictions on Legal Services lawyers and another upholding limits on campaign spending by political parties; a voting rights challenge; a state-action dispute involving a high school athletic association; and a boundary dispute between a state and an Indian tribe. The remainder of the 5-4 cases were heavily criminal, with a smattering of federalism, civil rights and arbitration rulings. UNANIMOUS VOTES At the same time, there continues to be a relatively high degree of unanimity on the Rehnquist Court. The justices agreed in 46 percent of the term’s decisions. The unanimity rate has remained above 40 percent since the 1992-93 term, with one exception — the blockbuster 1999-2000 term, when it was 39 percent. Kennedy cast only seven dissenting votes during the entire term. Most of them were in opinions by Souter. He also penned only one dissent — the fewest dissents on the bench. In contrast, Stevens cast the most dissenting votes — 24, most in opinions by Rehnquist and O’Connor — and authored the most dissents, 14. With a fairly cohesive majority of five conservatives, the Court, not surprisingly, has shown a repeated interest in certain areas of the law and in the Constitution’s allocation of power among the branches and between the national and state governments. Last term, the conservative majority once again reined in Congress’ lawmaking power by holding in Board of Trustees v. Garrett that federal lawmakers exceeded their authority when they subjected states to suits by employees for violations of the Americans With Disabilities Act. In the 1999-2000 term, the same majority held that state employees could not sue their states for violations of the Age Discrimination in Employment Act. The Court’s federalism revolution began six years ago, when the majority struck down the first federal law in 60 years on grounds that Congress had exceeded its lawmaking authority under the commerce clause. In Garrett, the majority focused on the lawmakers’ second source of authority — the 14th Amendment — and rejected Congress’ fact-findings of discrimination by states against people with disabilities. “If that record is insufficient to establish a constitutional basis for congressional action, then the power of Congress to enforce the 14th Amendment has reached its lowest ebb in the modern era,” says Steven R. Shapiro, legal director of the American Civil Liberties Union (ACLU). The high court examined structural questions of power in two other instances during the last term. CLEAN WATER ACT In an environmental challenge, the justices struck down a 15-year-old Clean Water Act regulation issued by the Army Corps of Engineers — the so-called migratory bird rule — that allowed it to regulate intrastate bodies of water, such as wetlands and ponds. Solid Waste Agency of No. Cook County v. Army Corps of Engineers. “The Court dodged the ultimate constitutional question, relying instead upon statutory interpretation,” says constitutional law scholar Douglas Kmiec, dean of the Catholic University of America School of Law. “But it importantly reaffirmed that federalism lives in the construction of statutes.” Kmiec notes that if the Court’s composition changes, “This is one area that would readily tip the other way.” But the high court also unanimously rejected a major challenge by the business community to the authority of the Environmental Protection Agency under the Clean Air Act. Business had attacked EPA’s new ambient air quality standards as an unconstitutional delegation of authority by Congress to the agency. Whitman v. American Trucking Associations. Levy says that he sees some tension between the Court’s federalism rulings and its pre-emption decisions. In all three pre-emption cases last term — challenges that involved the First Amendment, ERISA and the Food and Drug Administration — federal law trumped whatever the state had done, he says. “I think the Court views federalism cases as being fundamental constitutional questions about the allocation of power in our federal system,” he says. “The pre-emption cases aren’t really constitutional cases but questions of statutory interpretation: Did Congress intend to make a whole area subject to federal control exclusively?” Congress, in the pre-emption area, can amend a statute to get the result it wants, but it can’t do that in the federalism area, he explains. “So there is something more fundamental about federalism cases,” Levy says. FOUR BIG AREAS The justices last term had an unusually large number of challenges in four areas of the law: arbitration, First Amendment, Fourth Amendment and immigration. The Court decided five arbitration-related cases and, in all five, voiced strong support of the arbitration process. The most important of the quintet, most arbitration experts say, was Circuit City Stores v. Adams, which held that the Federal Arbitration Act applies to most employment contracts. “This is a Court that wants to get as much stuff as possible out of the courts,” says employment litigator Lawrence C. Lorber of the Washington office of New York’s Proskauer Rose. He notes that 25 percent of all new federal civil filings are either employment or civil rights claims. “That’s an astronomical amount, and they’re looking at this tidal wave coming in,” he says. SEARCH AND SEIZURE The justices also had eight Fourth Amendment challenges — one of which was dismissed. Of the remaining seven, the high court ruled in favor of law enforcement in four cases. The number of search-and-seizure challenges last term reflected in large measure law enforcement’s ongoing battle with drugs. The decisions also produced some of the more surprising alliances among the justices. In Atwater v. Lago Vista, the high court held, 5-4, that the Fourth Amendment does not prohibit a full custodial arrest without a warrant of someone who has committed a misdemeanor, fine-only offense. Souter wrote the majority opinion, which was joined by the chief justice, along with Scalia, Kennedy and Thomas. O’Connor led the Court’s moderate wing in dissent. And in Kyllo v. U.S., a 5-4 majority held that the Fourth Amendment did bar the warrantless use of a thermal-imaging device to detect heat emanating from a private residence. Scalia was the civil liberties champion, leading Thomas, Souter, Ginsburg and Breyer. Stevens, the Court’s most liberal member today, wrote the dissent. Kmiec, Levy and others see in some of the Fourth Amendment rulings and others a trend — although not a monolithic one — of protecting individual privacy. Besides Kyllo, the justices also held that police could not erect random roadblocks to search cars for drugs — Indianapolis v. Edmond — and ruled that the warrantless drug testing of pregnant women violated the Fourth Amendment. Ferguson v. City of Charleston. But, Levy notes, the Court was “anti-privacy” in Bartnicki v. Vopper, a case involving interception and publication of a cell-phone conversation. In that case, the justices held that the First Amendment trumped state and federal wiretap laws. PRIVACY TREND “I think privacy is a trend we’ll see more and more of to the extent the Court’s docket reflects what is happening in society — the use of the Internet and technological advances,” Levy says. Bartnicki was one of four cases in which the justices struck down restrictions on speech last term. The others involved federal limits on Legal Services lawyers in LSC v. Velazquez; the federal government’s mandatory advertising assessments on the mushroom industry in U.S. v. United Foods; and state advertising limits on tobacco products in Lorillard Tobacco v. Reilly. The justices continue to be sympathetic generally on speech issues, says the ACLU’s Shapiro. And while that is good news on the civil liberties front, the justices’ only First Amendment religion decision was not. Here again, the conservative majority continued a trend, this time of greater government accommodation of religion. In Good News Club v. Milford Central School, Breyer joined the five conservatives in holding that schools that create a limited public forum through use of their facilities cannot discriminate on the basis of a group’s religious viewpoint. The justices also faced the first litigation fallout from Congress’ 1996 reforms to federal immigration laws. In four cases, the justices, splitting 5-4, held that criminal aliens ordered deported cannot be held indefinitely and that federal courts can hear federal habeas challenges by these aliens to their deportation orders. CIVIL LIBERTIES The immigration victories for the civil liberties community seemed overshadowed by what the ACLU’s Shapiro calls the Court’s “scorched earth policy” on other civil liberties questions during the last term. A key defeat was the high court’s 5-4 ruling in Alexander v. Sandoval, holding that there is no private cause of action under Title VI of the Civil Rights Act of 1964 to challenge disparate impact discrimination in state programs and policies. And in Buckhannon v. West Virginia Dept. of Health, the conservative majority rejected the long-standing “catalyst” theory for attorney fee awards under federal fee-shifting statutes. In the end, Levy suggests, the Rehnquist Court’s conservatism contains many strands. “You can’t consistently say the Court is going to always rule in favor of X because of its overriding conservatism,” he says. The majority’s lack of deference to the other branches and its willingness to involve itself in issues, such as those raised by Bush v. Gore, he adds, indicates it is an activist, not a traditionally conservative, Court. Ultimately, he says, “It could be an activist Court in the service of other conservative principles, for example in outcomes, such as federalism and the narrowing of individual rights.” The high court already has accepted 49 cases for review during the 2001-02 term. Among them are challenges to the execution of the mentally retarded; two important patent cases, one involving the doctrine of equivalents; a First Amendment challenge to Congress’ attempt to protect children from indecency on the Internet; and affirmative action in government contracting.

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