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In the annals of the Rehnquist Supreme Court, June 26 will stand apart from any other day — counterintuitive, almost otherworldly. In rapid-fire announcements from the bench, the Supreme Court seemed to travel back in time to the days of the Warren Court. The Court handed down decisions that supported the interests of sex offenders ( Stogner v. California), homosexuals ( Lawrence v. Texas), Democrats ( Georgia v. Ashcroft), death row inmates ( Wiggins v. Smith) and consumer advocates ( Nike v. Kasky) — none of them the typical beneficiaries of Rehnquist Court decision making. As he sat in the courtroom that day, Paul Smith, the Jenner & Block partner who argued in favor of gay rights in Lawrence, was increasingly amazed as the opinion announcements proceeded. “I thought, ‘This is really interesting,’” says Smith, who is not given to overstatement. “The Court was not in its more conservative mode that day.” But in looking back at the decision making for the term that ended last week, it is hard to decide what mode it was in — except to say that it seemed bent on upending the expectations of those who watch and analyze it. It was as if, after nine years of togetherness — the longest period of stability in the history of the nine-member Court — the justices became restless and decided to rearrange the furniture, at least temporarily. And at week’s end, it appeared the Supreme Court may well remain stable for another term or more, as much-anticipated retirements failed to materialize. As recently as last year, most observers thought that the key legacies of the Rehnquist Court were its support of states in the federalism divide, its reining in of Congress, its support of the First Amendment, and, whenever possible, its avoidance of deciding hot-button social issues. None of those Rehnquist pillars toppled this term — but they also did not gain girth or deeper foundations. “This was a term of more progressive victories,” says University of Southern California law professor Erwin Chemerinsky. “I don’t want to overstate that. I still painfully feel the outcome in Andrade. But it was remarkable how many cases had progressive versus conservative outcomes.” Chemerinsky was counsel for Leandro Andrade, the loser in March in Lockyer v. Andrade, in which the Court upheld California’s three strikes law. With last week’s decisions fresh in mind, many analysts attributed the term’s idiosyncratic trends to the dominance of Justice Sandra Day O’Connor and her brand of pragmatic, almost legislative, problem solving. O’Connor was in the majority of all 13 of the term’s clear-cut 5-4 decisions. “What is most striking is the assurance with which this formerly obscure state court judge effectively decides many hugely important questions for a country of 275 million people,” said former Acting Solicitor General Walter Dellinger in Slate late last week. Florida International University law professor Thomas Baker sees O’Connor as a legal realist like her friend and mentor, the late Justice Lewis Powell Jr. O’Connor, Baker says, uses her vote to express her “attitudinal preferences in close cases, to seek compromise.” Assessing O’Connor’s crucial influence on the current Court, Thomas Goldstein of D.C.’s Goldstein & Howe says, “A retirement by O’Connor would be thermonuclear war.” O’Connor’s centrist approach, as much as any other factor, may explain why many of the Court’s trends seemed to stall this term. “Outside of the criminal law area, we don’t have a particularly conservative Court,” says Northwestern University School of Law professor John McGinnis. “They stand by their precedents, by and large.” Except, as it turned out June 26, when it comes to gay rights. Unflinchingly, and with disdain for its 1986 precedent Bowers v. Hardwick, the Court responded to — some critics say overestimated — society’s growing acceptance of homosexuality. In Lawrence and in Grutter v. Bollinger, which upheld affirmative action, the Court showed no reluctance to plant itself in the middle of what Justice Antonin Scalia derisively called America’s “culture wars.” This social boldness contrasts sharply with the Rehnquist Court’s usual deference to the elected branches in resolving knotty policy problems. Indeed, to some, O’Connor’s majority in Grutter has the tone of a legislative enactment, adopting the University of Michigan Law School’s affirmative action program with what amounts to a sunset provision. “We expect that 25 years from now, the use of racial preferences will no longer be necessary,” she wrote. “There is a focus-group, finger-to-the-wind quality to it,” says Emory University School of Law professor David Garrow. “It’s a good public policy solution, but, I think, not very good judicially.” On federalism, this was a term in which the Rehnquist Court’s revolution stood still. In a speech earlier this month, Justice Ruth Bader Ginsburg said, “Federalism was the dog that did not bark.” Her best example was Nevada Department of Human Resources v. Hibbs, in which the Court — by a 6-3 vote — said that the 1999 federal Family and Medical Leave Act’s family care leave provisions applied to state employees. But it was not the only defeat for what Ginsburg called “states’ rights pleaders.” In The Citizens Bank v. Alafabco, a little-noticed per curiam opinion June 2, the Court affirmed the authority of the Federal Arbitration Act over an in-state commercial loan transaction. The Court said its 1995 precedent United States v. Lopez, the touchstone of many of its later federalism decisions, had been misread by the Alabama Supreme Court. And in State Farm v. Campbell, the Court did not hesitate to rein in Utah and its state courts on the subject of excessive punitive damages, imposing federal due process standards on big awards. Federal authority also carried the day in American Insurance Association v. Garamendi on June 23. A California law seeking to force insurance companies to yield information on Holocaust survivors, the Court said, “interferes with the President’s conduct of the nation’s foreign policy and is therefore preempted.” One exception to the trend: In Pharmaceutical Research and Manufacturers of America v. Walsh, the Court gave at least a tentative green light to Maine’s efforts to secure discounts for drugs for its residents, rejecting claims that the program interferes with the federal Medicaid program. Congress fared relatively well this term, finding fewer of its enactments tossed out by the Court. In Eldred v. Ashcroft, the congressional extension of copyrights enacted in the Sonny Bono Copyright Term Extension Act won few fans on the Court, but by a 7-2 vote was upheld as a proper exercise of congressional power. Federal Communications Commission v. NextWave Personal Communications can also be read as a win for the federal bankruptcy laws over efforts by the FCC to take back licenses from a bankrupt telecommunications firm. Congressional efforts to restrict pornography on the Internet have not fared well before, but this term the justices found a law in this area that it could approve of: the Children’s Internet Protection Act. In United States v. American Library Association, the Court had little trouble endorsing the law’s requirement for filtering software on computers at public libraries as a condition for libraries seeking federal subsidies. “Maybe it is a conservative Court that is more comfortable with Congress, now that Congress is in conservative hands,” said O’Melveny & Myers partner and former Clinton administration official Ronald Klain at a Washington Legal Foundation review of the term. The library case was one of several surprising defeats for free speech and association claimants this term — rare, coming from a Court that has consistently favored freedom of speech and press no matter what its leanings in other areas. In all eight of the cases raising First Amendment issues this term, government restrictions carried the day. Virginia v. Black was the only case in which the free speech side achieved partial victory. In that case, the Court upheld a state law that criminalized cross burning with the intent to intimidate. But it struck down a part of the law that said the act of cross burning itself was prima facie evidence of the intent to intimidate. But in other First Amendment cases, the government won every time: campaign finance ( Federal Election Commission v. Beaumont); prison visitation ( Overton v. Bazzetta); trespassing laws ( Virginia v. Hicks); telemarketing ( Madigan v. Telemarketing Associates); and copyright ( Eldred v. Ashcroft). “The First Amendment has not been advanced in any meaningful way this term, and this is the first term we’ve seen that in a very long time,” says Ronald Collins, a scholar at the Freedom Forum who keeps extensive records on the high court’s First Amendment docket. The common thread in many of the cases, says O’Melveny’s Klain, may be that the Court is increasingly comfortable with laws of general applicability that happen to infringe on speech-related activities. “The First Amendment had a really lousy year at the Supreme Court,” he says. But apart from the decisions themselves, Klain says, the headline of the term is O’Connor’s role. Noting that O’Connor did not author a single dissent all term, Klain says, “Her approach is the dominant one. It really was O’Connor’s term. If we didn’t have the tradition of naming courts after the chief justice, this would be the O’Connor Court.”

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