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Sometimes the Supreme Court leads the nation: commanding school desegregation. And sometimes the Supreme Court follows: prohibiting the execution of the mentally retarded. In the term just ended, the Supreme Court both led and followed. It caught up with a large segment of society that accepts, however reluctantly, affirmative action to address racial imbalance and the right of homosexuals to equal protection and due process under law. And, in both the tone and sweep of its gay rights and affirmative action decisions, the high court also moved the nation’s debate on both issues to another level. “It was a momentous term,” said veteran high court litigator Mark Levy of Washington’s Howrey Simon Arnold & White. “There was an unusually large number of landmark decisions, with affirmative action and gay rights at the top. A few others would have made it even more momentous, but they washed out,” he added, referring to challenges involving corporate speech and class action settlements. The affirmative action and gay rights rulings were the defining decisions of the term and are likely to have legal, political and social repercussions for years to come. Their “liberal” results provoked angry criticism from many conservative court watchers as well as doubts about how “conservative” the conservative Rehnquist Court truly is. “If you call this court ‘conservative,’ it’s a misnomer,” said another veteran high court litigator, Jay Alan Sekulow of Pat Robertson’s American Center for Law and Justice. “This is a court in transition. Its views have changed. I see a definite libertarian streak. It’s just too hard to label this court.” While calling the term “amazing on many levels,” Michael Greve of the conservative think tank the American Enterprise Institute (AEI) said he is, nonetheless “more and more perplexed” by the entire court. “In an entire set of cases, there was not a single majority opinion that I’d say was right,” said Greve, who also is a co-founder of the Center for Individual Rights, which brought the challenge to affirmative action in university admissions to the Supreme Court. “There is no indication they are serious about constitutional law,” he said. “It’s all post-modern gobbledygook.” But the seeds of the affirmative action and gay rights decisions were sown in prior decisions by their two chief authors, Justices Sandra Day O’Connor and Anthony M. Kennedy, respectively, as well as in other court precedents. And those two rulings do not necessarily signal a change in direction so much as a leap forward. “I don’t think the Court has moved [to change its direction],” said former Solicitor General Walter Dellinger of the Washington office of O’Melveny & Myers. “It was just the particular configuration of cases this term. I think the major cases this term were not a sign of liberal activism.” In those cases, the Court took a rather conservative path, he explained: It largely deferred to government authority — for example, to the state’s compelling interest in diversity in education ( Grutter v. Bollinger) and to Congress’ authority to enact the Family and Medical Leave Act as a means of countering sexual stereotypes in the workplace ( Nevada Dept. of Human Resources v. Hibbs). Even in the gay rights case, Lawrence v. Texas, the high court reflected the thinking of a majority of states by overturning sodomy laws in a handful that still were repressing gays, he added. Levy agreed, saying, “If I had to pick a theme for this term, I would say more deference, more harmony with other political branches. This is a court that has struck down more congressional statutes — 26 — than any court in history. This term, by contrast, it didn’t disagree nearly as much with the other branches.” To Dellinger’s list of the University of Michigan Law School affirmative action decision and the Family and Medical Leave Act challenge, Levy would add the major copyright challenge of the term — Eldred v. Ashcroft. The Court found that Congress did not exceed its lawmaking authority in enacting the Copyright Term Extension Act of 1998, which enlarged copyright protection to run from a work’s creation until 70 years after the author’s death, for existing and future copyrights. He also noted deference to Congress’ line-drawing in the area of campaign finance in Federal Election Commission v. Beaumont. In that case, the high court found that the First Amendment was not violated by federal regulations requiring nonprofit corporations — here, North Carolina Right to Life Inc. — to abide by the same federal ban on direct contributions to elections that applies to for-profit corporations. And, in U.S. v. American Library Association, added Levy, the court deferred to Congress’ spending power when it held that the First Amendment was not violated by the Children’s Internet Protection Act. That act requires public libraries that receive federal funds to install software to block obscene or pornographic images and to prevent minors from accessing that material. “This is a court that doesn’t generally defer to government agents,” said Dellinger. “It decides everything for itself, whether it’s the rules of golf or presidential elections. What it chooses to decide at this stage is not very extreme one way or another, but the seeds are there for the court to be a much more influential institution.” A week after the term ended and with the glow of a rare affirmative action victory still burning bright, Theodore Shaw, associate director-counsel of the NAACP Legal Defense and Educational Fund, offered a sobering perspective: Grutter — the Michigan law school decision — “basically adopts Bakke and Bakke was a loss for civil rights,” said Shaw, referring to Regents of Univ. of Calif. v. Bakke, 438 U.S. 265 (1978). “The fact that we have been defending Bakke reflects how far the court has moved to the right,” he added. “This is still a very conservative court.” NUMBERS PORTRAIT So how does a “very conservative court” produce such extraordinary civil liberties victories, not just in affirmative action and gay rights but also on the death penalty this term? In a word: O’Connor. With the retirement in 1987 of the late Justice Lewis Powell — the key swing vote and center of the then Burger Court — O’Connor appeared to be the most likely justice to step into the Powell position. Since then, she has carefully and confidently charted a moderating path on some of the most divisive legal and social issues to come before the court: affirmative action, abortion and separation of church and state. Last term, she not only wrote the law school affirmative action opinion, but she adopted Powell’s reasoning in Bakke that diversity in education is a compelling government interest. She also wrote the majority opinion in Wiggins v. Smith, which tackles one of the most persistent shortcomings in the death penalty system — inadequate lawyering for the defense. To the dismay of civil rights groups, she also authored majority opinions upholding the severe sentencing schemes resulting from states’ “three strikes” criminal laws. Ewing v. California; Lockyer v. Andrade. She also continued to impose her narrow view of the consideration of race in redistricting in a key voting rights decision, Georgia v. Ashcroft. Statistics from the term also show her influence in the outcome of the Court’s rulings overall. In the most closely divided cases of the term, those decided by 5-4 votes, O’Connor was in the majority in 13 of the 15. No other justice came close. The 5-4 splits, as usual, came in a variety of challenges. They included the affirmative action ruling, Grutter; the takings challenge to client funds in IOLTA (Interest on Lawyers’ Trust Accounts) accounts, Brown v. Legal Foundation of Washington; and the Eighth Amendment challenge to “three strikes” laws, Ewing and Lockyer. O’CONNOR’S ROLE Of the 15 splits, O’Connor was key to six victories by the long-dominant conservative majority of Chief Justice William H. Rehnquist, herself and Justices Antonin Scalia, Kennedy and Clarence Thomas. She also was crucial to the four victories by the Court’s more moderate wing of Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. She then joined with varying combinations of justices to form majorities in three other 5-4 splits. Also striking are O’Connor’s overall voting patterns during the last term. She and Rehnquist cast the fewest dissenting votes in their colleagues’ opinions. She wrote the fewest dissents. Casting the most dissenting votes of the term were conservative stalwarts Scalia and Thomas. Thomas also wrote the greatest number of dissenting opinions. “When you think about a conservative court and the Rehnquist ‘Five,’ this is a term that doesn’t fit that picture,” said Levy. “This is a term that differed.” The justices issued 71 signed decisions last term, a final decree in the original case of Kansas v. Nebraska, and 12 per curiam, or unsigned, decisions. More than half of the decisions came from state Supreme Courts and the 9th U.S. Circuit Court of Appeals. And neither fared particularly well. In terms of voting alignments, two of the more enduring match-ups in all types of cases are Scalia-Thomas and Souter-Ginsburg. O’Connor’s influence aside, the term’s most surprising justices may well have been Kennedy and Rehnquist. Kennedy authored the 6-3 majority opinion in Lawrence, striking down a Texas law that prohibited same-sex persons from engaging in certain intimate sexual behavior. That Kennedy would be the author of Lawrence was not a complete surprise, given his majority opinion in Romer v. Evans, 517 U.S. 620 (1996). Romer was a victory for the gay community. It struck down, on equal protection grounds, an amendment to the Colorado constitution which effectively repealed all laws, ordinances and regulations that banned discrimination on the basis of sexual orientation and prohibited future ones. It was a cautious victory, not a landmark one. “This is probably the most conservative Supreme Court in a century, in all areas of the law,” said Peter Rubin of Georgetown University Law Center recently. “Even when this court has done something considered progressive, they’ve done it in a crabbed way — like Romer.” But Lawrence, he added, reflects “a full-throated constitutional vision, the likes of which we haven’t seen since Casey.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992), affirmed a woman’s right to abortion in an unusual majority opinion written by three justices: O’Connor, Kennedy and Souter. In Lawrence, Kennedy struck down the Texas sodomy law, not on the narrow grounds of equal protection — the law criminalized sexual conduct by homosexuals but not the same conduct by heterosexuals. Instead, he held that the law violated the liberty interest protected by the due process clause. He relied on a long line of privacy cases, including Casey. And, he went further by overruling Bowers v. Hardwick, 478 U.S. 186 (1986), which had held the opposite. “The petitioners are entitled to respect for their private lives,” Kennedy wrote. “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.” Dellinger noted, “It’s very important to keep in mind how many narrower grounds there were to decide this.” In fact, O’Connor, in her concurring opinion, said she would have struck the statute on equal protection grounds. “I never expected O’Connor to move from her substantive due process viewpoint, but she had consistently been open to the equality concern, as evidenced in Romer,” said Chai Feldblum of Georgetown University Law Center, who filed an amicus brief in the Lawrence case. “Kennedy certainly was a question mark in terms of due process.” A QUESTION MARK, NO MORE But Douglas Kmiec of Pepperdine University School of Law said Lawrence and the affirmative action decision, Grutter, resulted in a term that “gave precedent a bad name.” On the Monday of the term’s final week, he said, “Justice Kennedy chastised sister O’Connor for disregarding the essence of equal protection review [in Grutter]. By the week’s end, Justice O’Connor might have said the same in reverse about Justice Kennedy’s sweeping due process overruling of Bowers.” While Grutter and Lawrence captured the most headlines of the term, the term’s most surprising decision was Nevada Dept. of Human Resources v. Hibbs, involving the federal Family and Medical Leave Act (FMLA), and the term’s main federalism challenge. In Hibbs, the Court was asked whether state employees could sue states in federal court for damages if they failed to comply with the act’s family-care provisions. Congress can abrogate a state’s 11th Amendment immunity from suit in a statute if it makes its intent to abrogate “unmistakably clear,” the Court has said, and if it acts pursuant to a valid exercise of power under § 5 of the 14th Amendment. In recent cases, the Court’s “conservative five,” led by the chief justice, has been hostile to such abrogations and has not permitted suits against states by its employees under the Age Discrimination in Employment Act and the Americans with Disabilities Act. “Time and again, the court said, ‘no,’ or at least only where there was tangible evidence of a clearly demonstrated pattern of constitutional violation by the states — which meant pretty much never,” said Kmiec. Proponents of the Court’s states’ rights jurisprudence expected the same result in Hibbs. But the Court, led by Rehnquist, said, “yes.” The Court found a clear statement of intent to abrogate state immunity in the FMLA and a long history of sex discrimination in the administration of leave benefits to justify the FMLA under § 5 of the 14th Amendment. “What was he smoking?” laughed Greve of the AEI. “A year ago I would have said that would never have happened. If that opinion is right, Morrison [U.S. v. Morrison, one of the Court's key federalism rulings] has to be wrong.” But Feldblum, who calls Hibbs the only real shift in the term, said, “It reflects how far the feminist movement has come in this country that both justices — Rehnquist and O’Connor — who are clearly committed to the states’ rights/federalism approach, felt that the issue of freeing women from the stereotype of caregiving was an important social goal that remained in the bailiwick of the federal Congress. “I think it reflects a change, at least on Rehnquist’s part, of being more aware and sympathetic to this particular feminist concern,” she added. While the temptation is great to focus only on the Court’s highest-profile cases in weighing the term, its work, of course, is much broader than those few cases. “The Court’s docket isn’t a vacuum,” said Howrey’s Levy. “It really is reflecting broader concerns in the litigation system and society at large. The Court is getting more arbitration cases because more arbitrations are going on. Two health care cases came up this term because states are grappling with this problem and a lot of cases are working their way through the system. IP is generating a large amount of litigation.” BUSINESS CASES The good news for the business community, he said, is that the Court took a substantial number of cases of interest to business — nearly half the docket last term. The bad news is that the business community lost many more cases than it won. State Farm Mutual Automobile Insurance Co. v. Campbell was the major victory of the term for business. The 6-3 court, led by Kennedy, struck down a punitive award of $145 million where the compensatories totaled $1 million. In the process, the Court elaborated on the “guideposts” to be used by courts in determining whether a punitive damages award violates due process. Kennedy went a step beyond the Court’s prior rulings by saying that single-digit multipliers of compensatory awards for punitive damages are more likely to comport with due process. “The fact the Court would go out on a limb and suggest potential ratios is a significant event,” said Arvin Maskin of New York’s Weil, Gotshal & Manges. “The fact the Court has seen fit to set forth parameters, albeit with the caveat it’s not etched in stone, will be a strong takeaway in lower courts.” The Court had four arbitration cases last term — a continuation of the trend in the last five years or so. Three of those cases concerned whether an arbitrator or a court should decide certain issues, such as class action status and treble damages. “In all three cases, the Court has committed the decision to the arbitrator rather than a court,” said Levy. “One of the hallmarks of arbitration is that it be less formal, quicker and less expensive than litigation. To the extent judges are brought in early, that would undermine the basic reason for arbitration. That doesn’t mean there aren’t any gateway issues for judges to decide. But the Court is making it clear that is a narrow category.” Intellectual property issues also gained ground on the court’s docket last term. The Court decided three key cases: Eldred, involving the Copyright Term Extension Act; Dastar Corp. v. Twentieth Century Fox Film Corp. , in which the Court held the Lanham Act does not prevent the unaccredited copying of an uncopyrighted work; and Moseley v. V Secret Catalogue Inc. , the Court’s first interpretation of the federal Trademark Dilution Act. The Court also had two key health care challenges: In Kentucky Association of Health Plans v. Miller, the Court held that the state’s “any willing provider” laws are not pre-empted by the federal Employee Retirement Income Security Act. And in Pharmaceutical Research & Manufacturers of America v. Walsh, the Court refused to enjoin a state prescription drug program for poor residents after finding the drug companies did not show a probability of success on their claims that the program violated the commerce clause and was pre-empted by federal law. “The state’s authority was recognized in each and was not displaced by federal law,” said Levy. “Both are cases where states are grappling with societal problems of exploding health care costs. These were innovative experiments and the Supreme Court said there was nothing in federal law to prevent them.” The Court last term also had its customary large number of First Amendment challenges — six. They arose in a variety of contexts and ended with mixed results. The library-Internet case was considered the biggest loss in the bunch by civil liberties groups. In Virginia v. Black, the Court held that states could criminalize cross burning with the intent to intimidate. But, the Court added, states could not presume that every act of cross burning was intended to intimidate. “Intimidation is pure hate speech and punishing conduct is not unconstitutional content regulation since it does not single out for objection a specified set of disfavored topics,” said Kmiec. In Illinois v. Telemarketing Associates, the Court held that states may punish professional fundraisers for misleading solicitations on behalf of charitable groups, but they could not impose a cap on the fundraising expenses of nonprofit organizations. And in Virginia v. Hicks, the Court upheld a state policy allowing police to arrest for trespass anyone on the streets of a local housing development without a legitimate business or social purpose. On the criminal side of the docket, the term’s biggest cases included Wiggins, the death penalty lawyering case; two cases from California challenging the “three strikes” law (Ewing and Lockyer); and two cases in which the justices upheld state laws requiring registration of convicted sex offenders (Connecticut Dept. of Public Safety v. Doe and Smith v. Doe). The state law punishing repeat offenders more harshly after three strikes was neither “cruel and unusual” nor “grossly disproportionate” under the Eighth Amendment, the court held. LOOKING AHEAD The Court begins its new term with early arguments — Sept. 8 — in the major challenge to the new Bipartisan Campaign Reform Act. The Court is expediting the case because of the pressure of another election cycle and the need for guidance on the constitutionality of new restrictions on soft-money contributions and issue advertising. The justices also will step into the always controversial area of the First Amendment and religion in Locke v. Davey, No. 02-1315. The challenge involves a state regulation that puts state-funded scholarships off-limits to theology students. State immunity from suit also returns to the Court docket in the new term, this time in a challenge under Title II of the Americans with Disabilities Act, which applies to governmental entities. Tennessee v. Lane, No. 02-1167. And the justices take up the contours of the Fourth Amendment’s requirements for police searches and the Fifth Amendment’s Miranda warnings in a quartet of challenges. “I think next term you’ll also have the pledge of allegiance challenge on the docket,” said Sekulow of the American Center for Law and Justice. “That and the scholarship case will be the most significant free exercise and establishment clause cases the court has taken in 30 years. Along with the campaign finance case, you already have the stage set for a blockbuster term.”

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