Thank you for sharing!

Your article was successfully shared with the contacts you provided.
No individual or institution escapes change in a lifetime. After 11 remarkably unaltered years together, the Rehnquist Court has entered its own season of change. The announced retirement of Justice Sandra Day O’Connor will break up one of the longest-running shows in Supreme Court history. That event alone would be sufficient to shake up the dynamics on this most collegial bench. But O’Connor, of course, has held the Court’s center, not only casting the decisive vote in many of the Court’s closest cases, but crafting standards and tests that cross a wide swath of law, from affirmative action to religion to habeas corpus to voting rights. And given the ages of some of the remaining justices, and the illness of Chief Justice William H. Rehnquist, additional changes on the bench are more likely than not in the near future. The long-term implications for the Court are hard to predict, said veteran Supreme Court litigator Paul M. Smith of the Washington office of Chicago’s Jenner & Block, but, he added, “A very articulate person who gets along with the other justices could have enormous influence in two or three years on this Court.” That person, some court watchers say, could very well be Judge John Roberts of the U.S. Court of Appeals for the D.C. Circuit, who was nominated last month for O’Connor’s position. A former Rehnquist clerk and deputy solicitor general, Roberts was considered a brilliant advocate in public and private practice, as well as a personable colleague. There was evidence of change in other areas as well, some not particularly nuanced. A 5-4 high court, revisiting the constitutionality of the death penalty for juveniles, changed its mind and struck down the ultimate punishment for those who committed murder when they were below age 18. The Rehnquist Court’s federalism revolution, imposing limits on Congress’ lawmaking power under the commerce clause, stalled in a case involving the medical use of marijuana. The ruling, which featured the defection of two stalwart federalism justices, left some scholars declaring that the revolution had sputtered and died, but others predicting it would go forward, as this case was only about drugs. And the dominant conservative voting block of Rehnquist, O’Connor and justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas bowed to the superior coalition-building powers of the Court’s oldest member, Justice John Paul Stevens, in almost all of the major, most closely divided decisions. “I think this was a dreadful term for conservatives,” said another veteran high court litigator, Mark I. Levy of the Washington office of Atlanta’s Kilpatrick Stockton. “I would say the same thing for the business community, which had, at best, a fair term.” The term before last was defined by challenges stemming from the nation’s war on terrorism. The term just ended was a relatively quiet one by comparison, many court watchers said. But it also was a fascinating one, added Texas Solicitor General Ted Cruz, who argued a key death penalty case and was involved in one of the two Ten Commandments challenges. “There were lots of cases raising fun and sexy issues,” he said, noting, for example, challenges involving direct shipment of wine to consumers and the downloading of music and other files on the Internet. “The term rocked and rolled.” Three terms ago, the very conservative Rehnquist Court produced extraordinary civil liberties victories in challenges involving affirmative action, gay rights and the death penalty. The key to those victories was one justice: O’Connor. During that term, she was the decisive vote in 13 of the 15 decisions that split into 5-4 votes. No other justice came close. She also was the author of the majority opinion in several of those civil liberties victories. In the term just ended, O’Connor continued in her role at the center of the Court, a role she has played with increasing confidence since the retirement of the Court’s former swing vote, Justice Lewis F. Powell Jr., in 1987, but her influence was diluted somewhat. The 5-4 splits are always interesting for what they reveal about the types of cases that divide the Court most closely and for which justice or justices are crucial to the outcomes. But in the last term, they also showed the shifting alliances that lifted the term out of the ordinary category. The justices last term split 5-4 and 5-3 (reflecting Rehnquist’s absence because of cancer) in 22 decisions: 28 percent of the term’s signed decisions. As is typical, those decisions cut across many areas of the law, such as immigration, habeas corpus, property rights, church-state separation and civil procedure. Those 22 decisions also included an unusually high number of the term’s highest-profile challenges: � Roper v. Simmons, in which the Court struck down the death penalty for juveniles under 18. � Granholm v. Heald, in which the Court barred discrimination against out-of-state wineries by states permitting direct shipments of wine by in-state wineries to consumers. � Jackson v. Birmingham Board of Education, in which the Court held that Title IX of the Education Amendments of 1972 encompasses claims for retaliation by those who complain about illegal sex discrimination. � Kelo v. City of New London, in which the Court held that the Fifth Amendment’s public-use requirement does not forbid the taking of private property for the purpose of economic development. � The two Ten Commandments rulings: upholding a monument on the Texas State Capitol’s grounds in Van Orden v. Perry, and striking down a display on courthouse walls in Kentucky in McCreary County v. ACLU of Kentucky. � And U.S. v. Booker and U.S. v. Fanfan, in which the Court found the Federal Sentencing Guidelines unconstitutional and declared them advisory, not mandatory, in application. Justices O’Connor and David H. Souter appeared most often in the majority of the most narrowly decided cases — 14 of 22, or 64 percent — and justices Stevens and Ruth Bader Ginsburg, least often — 11, or 50 percent. Kennedy wrote the most majority opinions in this group, five, followed by Souter with four. In 2004, in a statistical retrospective of the Rehnquist Court, the Harvard Law Review reported that the erstwhile voting bloc of Rehnquist, O’Connor, Scalia, Kennedy and Thomas had constituted the majority in 82 out of 175 (46.9 percent) split decisions in the previous 10 years. Last term, however, that bloc prevailed in only four of the 22 splits (23.5 percent), and only one of the four — the Ten Commandments ruling in Van Orden — was one of the term’s top challenges. Stevens, on the other hand, with help from O’Connor, Scalia and Kennedy, appeared in split majorities in seven of the term’s most significant rulings, including Booker, Roper, McCreary County and Kelo. He wrote majority opinions in Kelo, Booker and Smith v. City of Jackson, which held that disparate-impact claims may be brought under the Age Discrimination in Employment Act. “The last three or four terms have been pretty good ones for the Stevens point of view,” said Kilpatrick’s Levy. But there were some surprising shifts and alignments. Stevens, who has vigorously opposed the Court’s states’ rights jurisprudence, sided unsuccessfully with the states in the regulation of out-of-state direct wine shipments in Granholm. And Kennedy and Scalia, two of the five pillars upon which Rehnquist built his federalism revival, voted against those states in the same case. O’Connor voted for state regulation. It was Breyer who, while voting against the Ten Commandments display in McCreary County, joined the dissenters in that case to uphold the Texas monument in Van Orden. O’Connor voted to strike down displays in both cases. And Scalia, espousing deference to the Equal Employment Opportunity Commission’s regulations, joined the majority to recognize disparate-impact claims under the ADEA in Smith. O’Connor dissented. “This year, with an ailing chief, it often fell to [O'Connor] to defend conservative principle more strongly and openly,” said constitutional law scholar Douglas Kmiec of Pepperdine University School of Law. “She vigorously dissented from opinions favoring the feds over the states on clearly local matters like the compassionate use of medical marijuana. With poignant concern for the individual lives displaced by the condemnation bulldozer, she rose to the defense of everyone’s home against an overly broad conception of taking for public use. She reverted to her less commendable and more inscrutable side in the Ten Commandments’ cases.” The high court issued 74 signed decisions last term — a number that is in line with its work output over the last decade and a number that still causes concern among some court scholars. Last term, Breyer cast the fewest dissenting votes in opinions by his colleagues — 10. Thomas was by far the most frequent dissenter, casting 20 dissenting votes and writing the largest number of dissents — 14. In terms of voting alignments, the Souter-Ginsburg matchup continues with a high degree of agreement, as does the Scalia-Thomas alignment. A recent analysis of voting alignments by the Georgetown University Law Center’s Supreme Court Institute notes that a “considerable majority” of alignments — 29 out of 36 possible alignments, or 80.5 percent — show “a general negative trend in agreement, suggesting that voting alliances across the board are breaking down.” STALLED OR DEAD? The Rehnquist Court’s federalism revival has lost all momentum, said Randy E. Barnett of Boston University School of Law, who lost the term’s biggest federalism challenge: Gonzales v. Raich, the medical marijuana case. “We had a ship in the middle of the water and people predicting a forward momentum,” he said. “But that ship has stopped.” In Raich, the justices were asked whether the Controlled Substances Act exceeds Congress’ lawmaking power under the commerce clause as applied to the intrastate manufacture and possession of marijuana for medical uses authorized by California law. The 9th U.S. Circuit Court of Appeals held that it did because this was a noncommercial activity that did not cross state lines. Supporters of the Rehnquist federalism jurisprudence believed that the high court also should say yes, and that answer flowed logically from its earlier commerce clause precedents striking down portions of the federal Violence Against Women Act and the Gun-Free School Zone Act. But the high court, voting 6-3, said no. Stevens, a staunch opponent of the recent federalism rulings, wrote the majority opinion and captured two of Rehnquist’s chief supporters in these cases — Kennedy and Scalia. The Court held that even a locally cultivated product that is not sold on the open market is subject to federal regulation if it is an essential part of a broader regulatory scheme and failure to regulate it would undercut regulation of the interstate market in that commodity. “It’s all about standards of review,” Barnett said. “The majority adopted an extremely deferential rational basis review.” O’Connor, in dissent, said a heightened standard of scrutiny should apply. The government should show why regulation of the commodity is essential to the broader regulatory scheme. Texas’ Cruz said, “Rumors of federalism’s demise are greatly exaggerated. Raich was much more about ‘commerce’ than about ‘interstate.’ And at least as to drugs, there is a national market the government is trying to do something about. I think in other circumstances, where government is limiting something that is not really ‘commerce,’ Raich loses its teeth.” Kilpatrick’s Levy agreed, adding, “There are a variety of areas other than the commerce clause that are relevant here — the 10th and 11th amendments, commandeering, Section 5 of the 14th Amendment, federal habeas corpus. Rehnquist really put these areas of the law into play.” For those interested in limiting the power of government, “There have been better terms than the one just ended,” said Scott Bullock of the Institute for Justice. The libertarian-inclined institute brought two of the term’s highest-profile cases: the direct shipment of wine challenge (three consolidated cases) and Kelo, the eminent domain challenge. The wine ruling was the “bright point” in the term for the institute, said Bullock. States were on the losing end of that battle, too, when the justices, 5-4, struck down New York and Michigan laws as violating the dormant commerce clause because they discriminated against out-of-state wineries when they barred their direct shipments to consumers but allowed in-state wineries to ship directly. The Court rejected the states’ arguments that they had authority to regulate in this manner because of the 21st Amendment. Kennedy led the majority here, which included Scalia, Souter, Ginsburg and Breyer. Stevens wrote a dissent in which the 85-year-old justice noted he remembered ratification of the 21st Amendment, and Congress intended it to prevail over conflicting commerce clause concerns. Stevens’ intent argument led Bullock, with tongue in cheek, to call the justice “an originalist.” LAND MINES If the federalism ship is stalled, the property rights ship is sinking. The property rights movement lost all three challenges in the high court last term: Kelo, Lingle v. Chevron and San Remo Hotel v. City of San Francisco. In Kelo, a 5-4 majority led by Stevens held that the public-use requirement in the Fifth Amendment permits the taking of private property for economic development purposes, such as increasing tax revenues and improving the local economy. In Lingle, a unanimous Court jettisoned a 25-year-old takings test that allowed courts to invalidate state laws and regulation that did not “substantially advance” a legitimate state interest. And in San Remo Hotel, the Court in another ruling by Stevens held that it would not create an exception to the full faith and credit statute to open federal courts to taking claims where the federal constitutional issue had already been decided by a state court. After Scalia joined the high court, there were significant rulings limiting land use regulations, noted Richard Lazarus, director of Georgetown’s Supreme Court Institute. With the addition of Thomas to the Court, the property rights movement seemed to have five “pretty solid” votes. But the property rights movement has been on the decline in the high court in the last five years. “They can blame Justice Scalia; he can’t hold onto a majority,” said Lazarus. “The irony is the justice who takes advantage is Justice Stevens, who was always in dissent.” In a series of recent takings cases, Stevens has brought in Souter, Kennedy and O’Connor at times, said Lazarus. “The once maverick is now the leader.” The Kelo decision was one of the top headline grabbers of the term, provoking considerable outrage not just among property rights advocates but lawmakers and the public. But Lazarus said the most striking aspect of the case was that it was considered “such a big deal.” Eminent domain, he said, is a very settled area of law. “I think it was an extraordinary PR job by the property rights movement,” he added. But Bullock, who argued on behalf of the homeowners losing their properties in Kelo, said, “This gives enormous power to state and federal governments. This eminent domain issue goes beyond property rights advocates. Thomas made it very clear in his dissent that this is going to affect those without political power, the poor and minorities. “The fact that four justices said the use was not appropriate means the Court, in the not too distant future, will reconsider this.” ADDING A ‘BUT’ The term overall was a fairly good one for civil rights, according to civil rights advocates, such as the American Civil Liberties Union. A number of the civil rights challenges involved statutes that are the “children of the Civil Rights Act of 1964,” said Drew S. Days III of Yale Law School. “It’s interesting that 40 years later the Court is still struggling with its application,” he said. “And they have used these cases to revisit old grievances.” In Jackson v. Birmingham Board of Education, a 5-4 high court, led by O’Connor, expanded the ability of claimants to bring claims under Title IX of the Education Amendments of 1972. Title IX’s private right of action encompasses claims for retaliation for complaints about unlawful sex discrimination, held the Court. “Title IX was a battleground for a war going on in the Court for some time,” said Days. Rehnquist, he explained, has cut back on implied private rights of action in civil rights statutes. But O’Connor found one here not only for victims of sex discrimination who endure retaliation for their complaints but for third parties who undergo retaliation for stepping forward and complaining. “There was a social policy interest here,” said Days. “Teachers and coaches are often the ones with knowledge of sex discrimination and the only ones who can come forward. They need protection.” In Smith v. City of Jackson, the Court again expanded litigation, this time under the ADEA by holding that the statute encompasses disparate-impact claims — claims that a facially neutral employment policy adversely protects a protected class. But the Court, led by Stevens, said the scope of disparate impact is not as broad as it is under Title VII of the 1964 Civil Rights Act. Employers in age disparate-impact cases do not have to prove their policies were justified by business necessity, only that they were reasonable — a much lesser standard. The high court also held that the police officer plaintiffs had failed to state a disparate-impact claim. In Johnson v. California, a 5-3 high court led by O’Connor held that strict scrutiny — the most searching standard for review in constitutional law — must be applied to evaluate a state’s policy of routinely segregating prisoners on the basis of race upon their arrival. In Spector v. Norwegian Cruiselines, a 6-3 plurality led by Kennedy held that Title III of the Americans With Disabilities Act, banning discrimination in public accommodations, applies to foreign-flagged cruise ships in U.S. waters. But restrictions in Title III that accommodations be “readily achievable” would probably prevent major structural modifications from being required. And in Castle Rock v. Gonzales, a 7-2 majority, led by Scalia, rejected a mother’s argument that she had a property interest in a mandatory arrest protection order that entitled her to due process when police ignored her repeated pleas to enforce the order after her children were taken by her estranged husband and later found murdered by him. “The Court is not interested in allowing further access to the courts on a variety of claims it sees as pushing the envelope of constitutional law,” said Days. A ‘FAIR’ TERM The high court last term took about the same number of business cases as it did in the previous term — about one-third to 40 percent of the total — and that’s counting “business-related” cases broadly, said Kilpatrick’s Levy. “I think that for business, pre-emption is the single most important recurring issue on the Supreme Court docket,” said Levy. “It comes up a lot in a wide variety of areas and a decision in one area frequently has spillover effect for other regulatory areas.” The big pre-emption challenge last term was Bates v. Dow Agrosciences, in which a group of peanut farmers sued Dow in state court because of damages to their crops allegedly caused by a Dow herbicide. Dow and the Bush administration argued that herbicides are regulated by the Federal Insecticide, Fungicide and Rodenticide Act, which bars private lawsuits in federal courts and implicitly bars state courts from also hearing suits. A 7-2 high court disagreed with Dow and the administration, holding that Congress did not explicitly pre-empt state tort liability. Bates reaffirmed some significant propositions that are not good news for the business community, said Levy. First, the majority put great weight on the fact that there is no private right to compensation for injured entities under the federal law, so federal law would not pre-empt state damages law. “That’s a very broadly applicable principle that almost invariably will weigh against pre-emption down the road,” he explained. Second, states can provide additional remedies as long as their substantive requirements are the same as or equivalent to federal law. “I think that’s brand-new law,” said Levy. “You’re going to have juries in 50 states deciding what is the controlling substantive law, that is to say, what federal law is. “There will be a substantial risk of inconsistency and disuniformity,” he added. “Companies won’t get any prospective guidance about what they should do in the future.” The biggest business case of the term and clearest victory was probably Arthur Andersen v. U.S., in which a unanimous Court, led by Rehnquist, overturned the accounting firm’s conviction for document destruction in connection with the Enron Corp. implosion. “I always thought the real importance of the case was its symbolic importance in this post-Enron day of government investigations of corporate fraud,” said high court litigator Gregory Garre of Washington’s Hogan & Hartson. “This was the first big corporate fraud case to reach the Court. The Court could have said this activity was wrong and government needs to aggressively prosecute these cases. It sends a clear message to prosecutors they have to be very careful in deciding which cases they pursue and on which theories.” Other key business rulings included MGM Studios v. Grokster, reinstating a copyright infringement suit against two file-sharing software providers; Dura Pharmaceuticals v. Broudo, raising the standard of proof for investors in securities lawsuits; and Merck v. Integra LifeSciences, expanding a federal safe harbor for use of patented drugs in drug research aimed at Food and Drug Administration approval. FACT-BY-FACT APPROACH The Ten Commandments’ dual challenges clearly defined the First Amendment decisions last term. The rulings “combine this case-by-case, fact-by-fact approach to establishment clause cases,” said Kathleen Sullivan of Stanford Law School. Souter, applying the three-pronged test from Lemon v. Kurtzman (a government action must have a secular purpose, must not advance or inhibit religion and must not foster excessive entanglement with religion), led one 5-4 majority to strike down displays on courthouse walls in McCreary County, Ky., because their purpose was to endorse religion. Rehnquist, ignoring the Lemon test, led another 5-4 majority to uphold a monument on state property in Texas. Breyer was the crucial vote in each. The decisions reflect the Court’s “hot button” strategy, said Sullivan. “Take a hot-button issue. Make both sides unhappy. Diffuse. Like abortion and Roe.” The Court faced very different First Amendment questions in Cutter v. Wilkinson, in which it upheld the constitutionality of a federal law requiring prison officials to accommodate the religious needs of prisoners, as long as they don’t interfere with security. And in Johanns v. Livestock Marketing Association, a 6-3 majority upheld government assessments on cattle producers to fund generic advertising because the advertising is government speech, which is not susceptible to First Amendment challenge. Criminal defendants scored some major — but close — victories last term, nearly all in death cases. “The Court is saying we have to be very, very careful when we impose this extreme penalty,” said Avis Buchanan, director of the Defender Service for the District of Columbia. Those victories include Roper, the juvenile death penalty challenge; Rompilla v. Beard, a death case in which a 5-4 Court found ineffective assistance of counsel for only the fourth time in 21 years; and Miller-El v. Dretke, overturning a death sentence because of racially biased peremptory challenges of jurors. The high court continued its sentencing revolution in U.S. v. Booker, striking down the mandatory Federal Sentencing Guidelines because judges could enhance sentences based on facts not found by juries, and making the guidelines advisory. “This past term was a relatively quiet one for the Court,” said Stephen Shapiro, national legal director of the ACLU, “but that is unlikely to last. The Court’s docket for next term already includes abortion and the right to die. In addition, important cases involving campaign finance and the war on terrorism seem headed for the Court. And, of course, a Supreme Court nomination battle will remind our nation once again of the central role that the Supreme Court plays in American life.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.