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Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 2: Direction of the Rehnquist Court" (2001). Supreme Court Preview. 133. https://scholarship.law.wm.edu/preview/133

Copyright c 2001 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview DIRECTION OF THE COURT

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Unikey A lianx Keeps Cart Centenx Ciity Camisfor O'Camorand Bmer Joan Biskupic ...... 24

FL. Rxom DonamtedHig Cant's Tem HistoneRuing in PnsidentialRace Reloea DiziIom, New Bddres A nngJusties Joan Biskupic ...... 29

Laig Doun the Laz; Justias Rulai With Corfene Frxn Bush v Gore Onuan4 A ciisrmMarkaiPast Tenn Charles Lane ...... 33

High Cant's TennMuh Moe Than "Bush u Gore" Tony Mauro ...... 37

The Separationcfjustie and State Linda Greenhouse ...... 41

Disaxd A ctuall 7hy Think for Thendzs Richard W. Garnett ...... 44

Wth CaerzatieEdge, HiOh Cant Cuts a Wide Szath Law Justics E nd TennHighihtel by Bush u Gore but Spenkled uith Far-Reabi DeiCiaSIn David G. Savage...... 47

In Year ofFlorida Vote, Supmn CantA ho Did Muah Other Wok Linda Greenhouse ...... 51 "RdjuistCant" Sets TermRaad CiJuticeLeans His Mark on Deaisom FrankJ. Murray ...... -...... 60 A Majority of Or Jeffrey Rosen ...... --...... 63

R ing to Caot Fa Yao tJustice A apts Being "Thorn in the Side ofThae Who Vily Ken Foskett ......

Dizidal 77 ey Stand The High Cant and the Tnmph ofDiscord Linda Greenhouse...... 8 7 The Futm f the Establishnent Clause Erwin Cheerinsky ...... 90

22 Be A dzisd- 'A darand"andAffinmtiw A ction Wil le Back on the Dodeet Stephen J. Werniel ...... 95

23 Unlikely Alliance Keeps Court Centered, Civility Counts for O'Connor and Breyer

USA Today

Thursday, June 21, 2001

Joan Biskupic

A black-tie dinner at the University Club helps explain why the court, in cases here in February was to feature Supreme involving issues such as voting rights, Court Justice Sandra Day O'Connor as abortion and public funding of parochial keynote speaker, with the introduction schools, has adopted a more moderate by another conservative justice, Antonin tone than the stance its majority took in Scalia. Bush vs. Gore.

But sometime between cocktails and the O'Connor remains part of the court's appetizer, the organizers realized that conservative wing, which includes Chief Scalia wasn't there. Because of a Justice William Rehnquist and Justices miscommunication, he had never been Anthony Kennedy, Clarence Thomas officially invited. Justice Stephen Breyer and Scalia. But she is most often the happened to be in attendance, and the court's swing vote and for years has been master of ceremonies sheepishly asked the most influential justice. him to fill in for Scalia. That often puts her in alignment with Before long, Breyer, a liberal who was Breyer, who often is more moderate than named to the court by Bill Clinton, was the court's other liberals: John Paul telling the audience about his warm Stevens, David Souter and Ruth Bader relationship with O'Connor, a Ronald Ginsburg. Reagan appointee. Calling O'Connor "a colleague and a friend," Breyer told of "He's the least liberal of the liberals, and their travels together to legal conferences she's the least conservative of the and spoke glowingly of her work on and conservatives," says Georgetown off the bench. University law professor Mark Tushnet, a former Supreme Court clerk who has For a few moments, the audience got a written several books about the court. glimpse of a friendship that has fostered a key alliance on a divided, conservative- Breyer has not replaced Kennedy, who led court that is still mindful of the like O'Connor has been a critical swing rancor it went through before its 5-4 vote. Those two Reagan appointees are ruling last December in the Florida on the same side about 90% of the time. election case. O'Connor and Breyer were But Breyer's alliance with O'Connor is on opposite sides in that ruling, which distinct because they are from opposite gave the presidency to George W. Bush. sides of the ideological divide and yet find common ground -- on and off the But the two justices have teamed up in bench - that often keeps the court from several major rulings over the past two tilting very far to the right. years. It is a developing partnership that

24 The Breyer-O'Connor alliance also but the nation" because the majority reflects other behind-the- scenes factors intervened in a "highly political matter" that help shape some of the decisions of that should have been left to Florida the current court, which is likely to wrap courts. up its term next week O'Connor and Breyer were plainly * Breyer's emergence as an effective disturbed by how the ruling conciliator, even though the 1994 deepened existing divisions among the appointee has the least tenure on the justices and made the court vulnerable to court and is in the liberal minority. accusations that it was just another political body. O'Connor's sometimes-cool relationship with the court's most Soon after the ruling, the two made a conservative justices, Scalia and Thomas. point of lunching together and talking to court clerks who were disenchanted by Even when Scalia and Thomas agree the decision. with O'Connor, they -- or she -- often will write a separate opinion using a Different styles, similar views different rationale. Scalia has belittled O'Connor's legal reasoning when More than their colleagues, O'Connor disagreeing with her. Breyer, meanwhile, and Breyer came to the bench with seems to go out of his way to be experience in building consensus -- respectful of O'Connor in his writings, O'Connor as a former Arizona state even when they disagree. senator and majority leader, Breyer as a former top aide to the * O'Connor and Breyer's strong desire -- Senate Judiciary Committee. shared by some other justices -- that Bush vs. Gore not continue to cast the Their styles are quite different: The tall, court as a panel driven by partisan stately O'Connor appears focused and politics. unflappable. The slightly rumpled Breyer exudes the air of an absent-minded Socially gregarious, O'Connor, 71, and professor (in fact, he taught at Harvard Breyer, 62, have tried to improve Law School). His self-deprecating personal relations among the justices manner contrasts with O'Connor's voice after the tumultuous ruling in December. of certainty. Among the least-known justices, Breyer often jokes about being In that decision, the court's mistaken for Souter. conservatives, including O'Connor, used an "equal protection of the law" rationale But when they join forces, O'Connor they had rejected in cases involving and Breyer forge rulings that reinforce minority rights to back Bush's claim that the court's center, typically settling a continuing to recount presidential ballots specific dispute at hand while leaving would be unconstitutional. The court broader legal issues to be resolved was widely accused of letting politics another day. dictate its ruling. It's an indication of how similarly they roles as jurists: Both see the Breyer said at the time, in dissent, that view their that is built and the ruling could "harm not just the court, law as something

25 defined incrementally, neither looks to Breyer wrote the court's opinion make sweeping legal pronouncements rejecting a complaint by white voters that unless a case absolutely demands it. the oddly shaped district was an unconstitutional racial gerrymander. It O'Connor said in a statement that Breyer was a precisely worded decision that "is exceedingly able and has a practical addressed O'Connor's worries about approach to problem-solving." Breyer racial preferences and quoted heavily echoes such sentiment when referring to from her earlier opinions on her. redistricting.

Analysts say theirs is an approach that Voting rights and congressional can mute the influence of ideology in redistricting are among the most certain cases. contentious areas of the law, and such cases typically are decided by "I think Americans generally have more one vote: O'Connor's. The fact that she confidence in judges who do not reach didn't write an opinion indicated a level too broadly," says John Jeffries, dean of of confidence in Breyer's approach. His the University of Virginia law school. opinion showed that, as a practical matter, districts that consolidate blacks "Justice O'Connor is a bottom-up judge. or Hispanics to boost their political She comes to a decision by studying the power can be constitutional. facts of each case. And even though Justice Breyer is more of a systematic The ruling was reminiscent of one of thinker, his opinions are quite Breyer's opinions last year in which he particular." secured O'Connor's vote to strike down Nebraska's ban on a type of abortion Off the bench that involves removing an intact fetus.

O'Connor and Breyer also have teamed His majority opinion borrowed many of up outside the court. O'Connor's words from previous abortion cases. It found Nebraska's ban They are strong supporters of the on such abortions unconstitutional American Bar Association's efforts to because the law lacked any "exception provide guidance to nations with for the preservation of the . . . health of evolving legal systems, such as the the mother" and imposed "an undue former states of the Soviet Union. This burden on a woman's ability" to end a summer, they will take part in a legal pregnancy with what might be the most Indian education program on American appropriate method. reservations. The court's liberal foursome needed Their teamwork on the law has been O'Connor's vote to more consequential. strike down Nebraska's law. Breyer's approach ensured her vote. A few weeks ago, Breyer persuaded O'Connor to side with the court's liberal The North Carolina and Nebraska wing in a key voting rights decision that decisions were coups upheld a heavily black congressional for the junior justice. district in North Carolina. But they were made possible only because O'Connor was

26 predisposed toward the bottom-line more direct public aid for judgments and because Breyer used such schools. a carefully calibrated rationale that did not turn her off. This month, Breyer appeared to try to win O'Connor's support in another case O'Connor often may agree with Scalia, involving the separation of church and for example. But she clearly has been state, when the court ruled that public displeased by some of his sweeping schools cannot deny religious groups the declarations when they are on the same use of their facilities after-hours. side and by his sometimes sarcastic approach when they differ. Breyer's opinion quoted extensively from her past writings to try to limit the Scalia's ridicule of O'Connor's reasoning breadth of the majority opinion, again in past abortion cases is well known -- he penned by Thomas. But O'Connor went once said her rationale "cannot be taken with Thomas and his endorsement of seriously"-- but even in lesser cases he Bible classes on school grounds for often cannot resist a jab. Last year, when children as young as 6. O'Connor wrote an opinion allowing a city's ban on nude dancing, Scalia O'Connor and Breyer "have a shared criticized the reasoning for offering not sensibility of deciding issues narrowly, even "a fig leaf" from precedent and rather than wanting to lay down broad performing a "neat trick" to justify rules," says Richard Fallon, a Harvard its conclusion. University law professor.

When O'Connor joins Breyer, it's Jeffries agrees. The religious schools case because he avoids broad decrees. last year, he says, was "a perfect example of O'Connor saying, 'This is a very large In May, when the court ruled that the issue. Let's not try to do it all at once.' " media could not be held liable for broadcasting an illegally taped private O'Connor and Breyer, Jeffries says, have conversation, the decisive concurring a "modesty" about judging. "They do not opinion (written by Breyer and joined by believe all questions can be answered all O'Connor) put some checks on the at once." media. In praise of O'Connor That collaboration recalled an opinion last June in which O'Connor and Breyer A little false modesty is just what Breyer teamed up to limit the consequences of a showed at the University Club that ruling on federal aid to parochial schools. evening in February when he was asked to introduce O'Connor. O'Connor and Breyer sided with the court's conservatives in upholding a He first engaged in some exaggerated at his table what and other dithering, asked people program that gives computers some notes instructional equipment to religious he should say, then scribbled schools. But their votes came with a on a scrap of paper. Breyer, catch: O'Connor, joined by But when he rose to speak, the words Thomas' push for a rejected Justice seemed to come easily. He recounted majority ruling that would have allowed

27 how aftending conferences with But they refuse to join a plurality opinion O'Connor had taken him around the by conservatives that could have world, referring to recent trips to permitted direct public aid to parochial Belgium, Germany and beyond. schools.

"Yes," Breyer said, relating a remark * Stenberg vs. Carhart, June 2000 -- from a mutual friend: "You can't -go Breyer, with the help of O'Connor's key wrong following Justice O'Connor." fifth vote, writes the majority opinion striking down a Nebraska ban on a The two justices' backgrounds controversial abortion procedure. The cautiously worded opinion acknowledges Sandra Day O'Connor that abortion sharply divides the nation. *Appointed: 1981, by Ronald Reagan eAge: 71 * Hunt vs. Cromartie, April 2001 -- *Birthplace: El Paso Breyer, with O'Connor as the fifth vote, *Education: Stanford University, B.A., writes the majority opinion upholding a 1950; Stanford University, L.L.B., 1952 heavily black North Carolina *Career highlights: Majority leader, ongressional district that white voters Arizona Senate; judge, Arizona Court of claimed was unconstitutional. Appeals * Bartnicki vs. Vopper, May 2001 -- Stephen Breyer O'Connor and Breyer are key to *Appointed: 1994, by Bill Clinton the six-justice majority that says the *Age: 62 media cannot be sued for broadcasting *Birthplace: San Francisco cellphone or other private electronic *Education: Stanford University, B.A, conversations that someone else illegally 1959; Oxford University, B.A., 1961; intercepted. Breyer, joined by O'Connor, Harvard Law, L.L.B., 1964 writes a separate statement saying the *Career highlights: Chief counsel, Senate opinion should be interpreted narrowly. Judiciary Committee; judge, U.S. Court of Appeals for 1st Circuit Copyright © 2001 USA Today Cases illustrate team's moderating influence on court

Justice Sandra Day O'Connor, a Reagan appointee, and Justice Stephen Breyer, a Clinton appointee, are on different sides of the nine-member court's ideological divide. But in several key cases recently, they have been a moderating force on the conservative-led court:

* Mitchell vs. Helms, June 2000 -- O'Connor's and Breyer's votes are critical in upholding a federal program that provides computers and other teaching materials to religious schools.

28 Fla. Recount Dominated High Court's Term; Historic Ruling in Presidential Race Reflected Divisions, New Boldness Among Justices

USA Today

Friday, June 29, 2001

Joan Biskupic

At a benefit dinner a few weeks ago, court that only a few years ago seemed Supreme Court Justices Anthony reluctant to enter the political fray or Kennedy and Sandra Day O'Connor play a significant role on the public stage. took part in a mock trial of Shakespeare's King Lear. Through the mid-1990s, Chief Justice William Rehnquist's court was As O'Connor was announcing the defined by a focus on the narrowest verdict, she teased that "it was suggested contours of legal disputes. It reversed that we (turn over) the case to the few precedents, rarely broke new ground Florida Supreme Court." and routinely left social problems to be resolved by elected legislators. There it was: another reminder, however lighthearted, of how deeply the high The Bush vs. Gore ruling was something court continues to be touched by Bush of an anomaly for a court that has spent vs. Gore, the divisive 5-4 ruling that more recent years boosting state settled the presidential election and authority at the federal government's turned a routine court term into one of expense. Marching into what many the most significant in decades. analysts viewed as a state matter, the court's five most conservative justices The conservative-led court's decision stopped the recounts favored by Dec. 12 to stop the recounting of Democrat Al Gore in a ruling that critics presidential ballots in Florida reversed said was dripping with partisan politics. that state's high court and ensured George W. Bush the presidency. It was Viewed another way, however, the just one of 80 rulings during the nine- decision -- or at least the court's month session that ended Thursday, but willingness to make it -- fell in line with it was the case that eclipsed all others, its recent tendency to take longer strides and it shadowed the justices through the in the law, and therefore be more of term's end. a player in national affairs.

An appearance by conservative Justice "The biggest thing about Bush vs. Antonin Scalia in Fort Lauderdale last Gore," says Harvard University law month drew protesters. And at the court professor Richard Fallon, "is that this is a this week, the law clerks' annual skit court that regards itself as the most spoofed Bush vs. Gore by comparing it indispensable institution" of with an episode of TV's Survivor. government.

More important, the ruling put a "It used to be that conservatism spotlight on the increasing boldness of a corresponded to a position of judicial

29 restraint," says Robert Schapiro, a law disabled. That decision in an Alabama professor at Emory University in case could affect millions of public Atlanta. "But the court has become less workers, but another ruling concerning deferential to other branches of the disabled might be better known: The government, and Bush vs. Gore reflects court ruled, 7-2, that disabled pro golfer that." Casey Martin has a right to use a cart in competitions. On Capitol Hill this spring, Kennedy told members of a House committee The conservatives also rejected federal that despite concerns over whether the regulators' attempt to preserve isolated Supreme Court should inject itself into wetlands that harbor migratory birds. the matter, the justices believed that "it was our responsibility" to decide the "It's not that the court loves the states," high-stakes Florida case. Yale University law professor Akhil Amar says in assessing the conservatives' Those sentiments were echoed by Justice moves against federal authority. "It's that Clarence Thomas during the committee the justices hate Congress and love hearing on the court's budget: "I was themselves even more. To them, the only interested in discharging my court really is supreme." responsibility, as opposed to avoiding it and playing it safe." * Despite the solidarity on the right, alliances shifted enough to give the left- Notable trends leaning justices some victories. The more liberal justices -- John Paul Stevens, Among the trends that marked this term: David Souter, Ruth Bader Ginsburg and Stephen Breyer -- were relegated to * The continued dominance of the five dissenting opinions in many of the most most conservative justices. Prevailing significant cases. But the liberals did lead most often in the cases that were decided the way in some key rulings, courtesy of by a single vote and had the broadest support from swing votes O'Connor and impact were Rehnquist, O'Connor, Kennedy. Scalia, Kennedy and Thomas. One factor was an emerging partnership That bloc repeatedly provided rulings between O'Connor, a Reagan appointee that curtailed federal power in favor of who hits her the states. It went further than ever in 20th anniversary this year, limiting Congress' ability to protect civil and Breyer, a 1994 appointee of Bill Clinton. Another factor was Kennedy's rights, ruling in separate cases that states concern could not be sued for discriminating about free-speech protections, which put him in league with the liberals against disabled workers or for in a decision that Congress violated free- regulations that disproportionately hurt speech guarantees when it prevented ethnic or racial minorities, such as "English only" policies. legal aid lawyers from challenging welfare restrictions on behalf of indigent In the disabled workers' case, the court's clients. conservative majority wrote off congressional findings attempting to On Monday, the liberals prevailed in a show widespread bias against the ruling that upheld a federal limit on how much political parties can spend when

30 they work with a congressional each other, and as they returned to the candidate's campaign. The decision in a regular business of their term Colorado case, backed by O'Connor, they were flooded with thousands of gave a boost to current campaign-finance angry letters. Polls showed the nation reform efforts by emphasizing Congress' was split over whether the justices ability to crack down on wealthy should have gotten involved. Rumors interests looking for loopholes so they circulated that one or more justices can give more money to candidates. might retire.

But generally, when the liberal justices But for all the criticism, the court did prevail, it is not in any broad area of the end the election deadlock and, federal law. There is no ground the left can judge Richard Posner says in a new claim as its own, as the right so book, averted a potential catastrophe. dominates in questions of states' power. "What exactly is the Supreme Court good for," Posner asks, "if it refuses to Debate on Rehnquist's court "takes place examine a likely constitutional error (by on right-wing turf," Fallon says. "This the Florida judges) that if uncorrected court doesn't talk very much about may engender a national crisis?" human dignity as a ground for rights any more. The cases are focused on technical Conservatives rule, liberals win a few arguments."

An example was a ruling in which the Beyond the bitterly divided ruling that liberals, with O'Connor's help, upheld a decided the presidency, the Supreme heavily black North Carolina voting Court's 2000-01 term that ended district challenged by white voters as a Thursday was guided largely by the racial gerrymander. The court said conservative majority, which led rulings the state could take race into account -- that cut back on the authority of just a little -- to preserve a Democratic Congress and eased the line separating power base. But the starting point was a church and state. But the court's four framework established by conservatives liberals, with help from conservatives that makes it difficult for state lawmakers Sandra Day O'Connor and Anthony to consider race in redistricting and to Kennedy, did prevail on a few significant consolidate minorities to enhance their cases. Among other things, they reined political power. in some police powers and confirmed Congress' right to limit some spending An air of anxiety by political parties.

Beyond the meat of the term, an air of Major rulings unpredictability and anxiety hung over the court, triggered by the politically --Individual rights volatile Florida election case that so many legal analysts had predicted the * Bush vs. Gore, 5-4 court would refuse to hear.

After the court heard the case and ruled for Bush, justices struggled with the * Hunt vs. Cromartie, 5-4 fallout. They were weary and tense with * PGA Tour vs. Martin, 7-2

31 * Cook vs. Gralike, 9-0 *, New York Times vs. Tasini, 7-2

--Criminal law --Environment

* Atwater vs. City of Lago Vista, 5-4 * Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of * Kyllo vs. United States, 5-4 Engineers, 5-4

Ferguson vs. City of Charleston, 6-3 * Whitman vs. American Trucking Assns., 9-0 * United States vs. Oakland Cannibis Buyers' Cooperative, 8-0 --Immigration

* City of Indianapolis vs. Edmond, 6-3 * Immigration and Naturalization Service vs. St. Cyr, 5-4 * Penry vs. Johnson, 6-3 * Zadvydas vs. Davis, 5-4 --First Amendment Copyright c 2001 USA Today * Good News Club vs. Milford Central School, 6-3

*Bartnicki vs. Vopper, 6-3

* Legal Services Corp. vs. Velazquez, 5-4

" Federal Election Commission vs. Colorado Republican Federal Campaign Committee, 5-4

* Lorrillard Tobacco vs. Reilly, 5-4

--Federal regulation

* Alexander vs. Sandoval, 5-4

* University of Alabama vs. Garrett, 5-4

--Business law

* Cooper industries vs. Leatherman Tool Group, 8-1

* Circuit City Stores vs. Adams, 5-4

Eastern Associated Coal Corp. vs. United Mine Workers of America, 9-0

32 Laying Down the Law, Justices Ruled With Confidence; From Bush v. Gore Onward, Activism Marked Past Term

The Washington Post

Sunday, July 1, 2001

Charles Lane

The 85 cases decided by the Supreme The conservatives appear to have had the Court in the term that concluded last last laugh on that issue. Public approval week can be neatly divided into two of the Supreme Court, as measured by categories: Bush v. Gore and everything polls, was not dented by the election case. else. About 72 percent of the public expressed a favorable view of the court in a March The court, displaying an increasingly poll conducted by Princeton Survey evident confidence about its capacity and Research Associates. authority to settle issues it might once have left to other branches of government Although the liberals may have been or to the states, produced important defeated in Bush v. Gore, they rulings on matters ranging from campaign scored significant victories in other cases: finance regulation to immigrants' rights. The court expanded immigrants' rights to resist deportation, shored up the But when the history of the term is Environmental Protection Agency's written, all of that is certain to be authority to enforce the Clean Air Act, overshadowed by the justices' intervention upheld federal campaign finance in the deadlocked 2000 presidential regulations, permitted states to draw election, culminating in the Dec. 12 congressional districts in a way that would decision that, in effect, handed the race to encourage the election of minorities, and then-Texas Gov. George W. Bush. affirmed that federal disability rights laws entitle disabled golfer Casey Martin to ride Bush v. Gore split the court along a golf cart in professional tournaments. ideological lines, with the court's five most conservative Republican Those victories were usually made appointees -- Chief Justice William H possible by the support of O'Connor Rehnquist and Justices Sandra Day or Kennedy -- the two more moderate O'Connor, Antonin Scalia, Anthony M. members of the court's conservative Kennedy and Clarence Thomas -- voting wing, who are the perennial swing votes for Bush and the more liberal on the court. They teamed up to justices -- John Paul Stevens, David H join 5 to 4 conservative majorities 14 Souter, Ruth Bader Ginsburg and times. But in eight other 5 to 4 Stephen G. Breyer -- issuing sharply cases, a winning vote from either worded dissents in which they O'Connor or Kennedy went for the accused the majority of endangering the liberals. court's legitimacy by dragging it into a partisan political dispute. By contrast, the liberals attracted one of

33 the two swing justices to their side in a 5 For the most part, the court's criminal to 4 case only once in the term that began cases went against law enforcement in October 1999, according to figures authorities. The justices, demonstrating compiled by Washington lawyer Tom skepticism about government methods in Goldstein. the war on drugs, invalidated an Indiana program under which police set up "The term could have been much worse," roadblocks and randomly searched said Elliot Mincberg, vice president and drivers' cars for drugs; struck down a legal director of the liberal People for the South Carolina program under which American Way. pregnant mothers were tested for drugs at a public hospital, with positive "There were some disappointments," said results forwarded to the police; and said Todd Gaziano, director of the Center for police must get a warrant Legal and Judicial Studies at the Heritage before using a thermal imaging device to Foundation, a conservative think tank. detect heat emanating from a marijuana-growing operation inside a One of the court's decisions this term house. even raised the intriguing possibility that next term could bring a victory for To be sure, the conservatives continued to opponents of capital punishment so successfully pursue their effort to enhance substantial that most anti-death penalty states' rights vis-a-vis the federal activists once considered it unimaginable: government. The most clearly The court agreed to consider whether conservative result this term was the the Constitution prohibits the execution court's holding that states are immune of mentally retarded criminals, an issue from discrimination suits for damages in the court had apparently settled, in the federal court by their disabled employees. affirmative, 12 years ago. It was important not only for its direct impact on state workers, but also for the A well-publicized story last term was one fact that the court brushed that, so far at least, hasn't happened: a aside detailed findings by Congress retirement by one or more justices. supporting the need for such a Frequent and feverish rumors provision in federal law. notwithstanding, the court's lineup remained unchanged, with O'Connor, 71, "Here you have this huge congressional issuing an unusual public denial of record, and the court still struck it down," speculation that she would leave the court. said Steven Shapiro, national legal director of the American Civil Liberties Union. "It Still, the frequency with which the court really left people in a quandary as decided cases by narrow margins this term to what means there are for federal civil -- there was a higher rate of 5 to 4 rights enforcement against state opinions, 33 percent, this term than in any defendants." other term for the past decade, according to Goldstein -- underscored for liberal and The court also eliminated the legal basis conservative activists the importance of for a whole category of anti- any future appointments President Bush discrimination lawsuits that minority might be called upon to make if one of groups had used to challenge the justices leaves. allegedly biased state actions ranging from certain admissions requirements at

34 universities to the placement of polluting Then, in the Clean Air Act case, the factories near minority neighborhoods. court's liberals and conservatives united to ward off an ambitious business- Another far-reaching conservative result led attack that sought to overturn the emerged in a Texas case involving a EPA's authority to regulate certain air mother who was arrested and briefly jailed pollutants on the grounds that the agency by police for not buckling her children's had not been specifically authorized to do seat belts while driving through her so by Congress. Scalia wrote the opinion. suburban neighborhood. The court, by another 5 to 4 vote, held that the However, in one respect that case may Constitution permits full custodial arrests have been the exception that for offenses that are normally punishable proves an increasingly evident rule about only by a fine. the court.

The majority in that case was an unusual Liberal and conservative justices share a one, with Souter joining Rehnquist, Scalia, propensity to substitute their judgment for Kennedy and Thomas and O'Connor that of Congress, lower courts, federal joining the court's other liberals in a agencies and state governments. dissenting opinion. The dissenters said the ruling could weaken the public's Even when a conservative majority protections against police abuses such as dismissed Congress's findings about racial profiling. state discrimination against the disabled in deciding that the disability rights law did And the court said employers may require not overcome states' sovereign imunity employees to submit their discrimination to discrimination suits, the effect was as complaints to an arbitrator rather than sue much to aggrandize the court's in court. power vis-a-vis that of Congress as it was to enhance state power against the federal On the environment, the conservatives government. also trimmed the scope of protection. They held that the Clean Water Act does And just as the conservatives trumped not authorize the federal government to Congress in that case, liberals regulate self-contained ponds located ruled in crucial immigration cases that within a single state and not clearly linked laws written by Congress that were to the country's broader network of ambiguous but seemed to preclude federal streams and lakes. They also granted court intervention on behalf of deportable property owners greater latitude to aliens did not, in fact, do so. sue for damages when they claim that state environmental regulation has As a result, immigrants may now have reduced the value of their property. access to federal courts to dispute their deportation orders, and the Immigration But in at least the clean water case, the and Naturalization Service has lost the court declined to adopt a broader authority to detain certain aliens proposed view of the case that would indefinitely pending their deportation to have held that Congress lacked countries that resist taking them back. constitutional authority to regulate such water generally. Instead, the immigrants can seek release in court, according to a new set of rules,

35 drawn up by the justices, that tend to favor immigrants more than the earlier rules.

In the Casey Martin case, an ambitious opinion written by Stevens dismissed the professional golf tour's claim that it should be able to decide all the rules of its tournaments, asserting instead that federal courts could evaluate when an accommodation for a disabled athlete might or might not constitute a "fundamental" change in the game.

Thus, the common element linking Bush v. Gore to many other cases this term was that it, too, amounted to a declaration by the court that it was better positioned than a lower state court or Congress to decide how -- or if -- ballots in Florida should be counted.

"The court assumes that it is more qualified than Congress to resolve disputed electoral votes, more entitled than the president's agencies to fill gaps in federal law and better equipped than the professional golf association to determine the rules of golf," said Walter Dellinger, a Washington lawyer who served as solicitor general under President Bill Clinton.

36 High Court's Term Much More Than "Bush v. Gore"

American Lawyer

July 2, 2001

Tony Maum

At the end of a long and pleasant lunch at recent jurisprudence on federalism and the Supreme Court recently, Justice David equal protection. Souter paused and told an old friend: "I'm very grateful that we didn't talk about Bah But, at the same time, other scholars and v Gow." analysts are trying to stitch Buh v Gore Souter's comment, recounted by the back into the fabric of the Rehnquist justice's lunch companion on the Court -- to see how it fits in with the condition of anonymity, offers a glimpse Court's overall direction. into the Supreme Court's term that ended last week. There was Buh v Goe -- the What's emerging is a consensus: Buh u Dec. 12 opinion that resolved the Florida Gom does fit into the broader patterns -- post-election recount dispute in favor of but only if the Court is viewed, not as a George W. Bush -- and then there was states' rights Court, or a Court that takes a everything else. narrow view of constitutional rights, but as a judicial supremacy Court, a Court that The justices would just as soon not think takes no guff from the other branches. It's or talk about Bush v Gor anymore, though a Court, in other words, bold enough to they have apparently reached the stage intervene in the messes the other where they can laugh about it. At the law institutions of government get themselves clerks' annual invitation- only show for the into, and self-confident enough to think it justices on June 26, the case was the target knows best how to fix them. of several send-ups. "This is the least deferential Supreme "After Bush v Gom, they rolled up their Court in American history," says former sleeves and worked hard to put it behind acting Solicitor General Walter Dellinger, them," says Drake University law now national chairman of the appellate Professor Thomas Baker, once an aide to practice at OMelveny & Myers. "The Chief Justice William Rehnquist. "Now, I theme of the last five years is not think there's a surreality to the case in federalism but judicial supremacy." their eyes. It's almost like it wasn't this term, not even this Court." Adds University of Virginia law professor A.E. Dick Howard: "I continue to be Like it or not, however, Bush v Gor, No. awed at the willingness of the Supreme 00-949, did emanate from this Court this Court to step into matters that Felix term. The first wave of book-length Frankfurter would never have gotten into. analyses of the case has emerged, with This term shows that to be conservative is Alan Dershowitz and Vincent Bugliosi not to be lacking in self-confidence." portraying it as a lawless and aberrant Frankfurter was a leading proponent of decision that runs contrary to the Court's judicial restraint.

37 THE RULE OF LAW Warren Court -- an abiding belief that they know better." Whether this boldness looks good or bad depends on the beholder's political bent. Whatever you call it, the trend appears to have blossomed across the landscape this Douglas Kmiec, a former Reagan Justice term. The same Court that made short Department aide and incoming dean of shrift of the ability of the Florida Supreme Catholic University of America's Court -- or Congress for that matter -- to Columbus School of Law, sees the Court's resolve the 2000 presidential election has term, including Bush v Core, as a "triumph elbowed aside a wide range of institutions of law over politics." He explains, "It in other decisions this term. nourishes the notion of a rule of law, because it says there are some things best Those that bore the brunt of the Court's resolved by a group of people who are power display this term included: independent, with life tenure and undiminished salaries." * the voters of California, who decided by a 56 percent majority that seriously ill Kmiec also thinks the Court did not make people who would benefit from using a power grab in the election case, but marijuana for medicinal purposes should accepted the "unsought responsibility" of be allowed to do so (Unital Staes u resolving the mess. But to Erwin Chkland Cannabis Bjens' Cxperatiw, No. Chemerinsky, law professor at the 00- 15 1); University of Southern California, the Court's assertiveness heralds "a new era of * administrative agencies, whose low-level the imperial judiciary." decisions, such as classification rulings by the U.S. Customs Service, were once That new era may have reached its apex in accorded so-called Chwern deference Bush u Gore, but it actually got started (Umtal Stats v Mead Cap., No. 99-1434); several years ago. * jurors who return big punitive damages A Supreme Court that once touted its verdicts (CoperIndusties Inc v Leadxmnn desire to recede from the spotlight began Todl Gmup Inc, No. 99-2035); grabbing it with its cases cutting back congressional commerce clause power in * political parties that want to coordinate Unid States v Lopez, the 1995 ruling that their spending with their candidates rejected the Gun-Free School Zones Act, (Federal Elation omission v Cdorado and continuing through last year's United Republican Federal Canpaign Omnitte, No. States v Monson, striking down parts of 00-191); the Violence Against Women Act. In City jfBoerne v Flons, the Court in 1997 said * and even the Professional Golfers Congress had no business passing laws -- Association, on the nature of the game in that case, the Religious Freedom (PGA Tour v Manin, No. 00-24). Restoration Act -- that interpret the Constitution. Of course, it was Congress that ended up on the receiving end with great frequency. Drake's Baker calls it "judicial hubris, The justices struck down laws that tried to something they have in common with the restrict immigrants rights (Ashcrf v Ma, No. 00-38, and Zadydas v Dais, No. 99-

38 7791, and cano-Maniirz v Inmugration tools that pierce the privacy of a home. In ard NaturalizationSerue, No. 00- 1011, and Indianapdis v Edmr( No. 99-1030, and Inmgration and Naturalization Serie v St Feguson v City f Cadriton, No. 99-936, Cyr, No. 00-767); muzzle legal services the Court disapproved of police programs lawyers (Legl Sermcs Corp. v Vdazquez, that searched cars and pregnant women, No. 99-603); punish the disclosure of respectively, for illegal drugs. eavesdropped telephone conversations (Bartniki v Vopper, No 99-1687); protect An expansive view of the Fourth disabled state workers (Baed j Tnstas f Amendment did not extend, however, to the Uniwsity qAtlam u Ganett, No. 99- Atwater v Lago Vista, No. 99-1408, in 1240); and promote the cleanliness of which the Court said people could be ponds (Sdlid Waste Agrry oNoathem Coe arrested for minor offenses that are Caarty v US. Amy Corps jEngitm, No. punished with only a fine. 99-1178.) In five separate decisions, the Supreme The Court was not in a defiant mood in Court also continued its embrace of every decision this term. The case arbitration as an alternative to litigation. involving the Federal Election And in its most important church-state Commission can be viewed as a bow to case of the term, Good Nezus Cub v Milfoni congressional campaign finance reform Cetral Sdxd, No. 99-2036, the Court said efforts. In another case involving a Bible club could not be deemed too government rules, Wlhitmn v Anrrican religious to meet on public school Tndin Assonatiom, No. 99-1257, grounds. It could bode well for the Bush Congress and the Environmental administration in future battles over Protection Agency won at least a partial school vouchers and faith-based victory on setting air quality standards. initiatives. The North Carolina legislature also finally won some respect for its redistricting The Court continued to be sharply efforts (Huntv Crrnmtie,No. 99-1864). divided, voting 5-4 in 26 of 85 cases during the term, with Justices Anthony The Supreme Court also did not step up Kennedy and Sandra Day O'Connor to the plate every time its intervention was playing their usual role as crucial swing sought. It passed on the Microsoft votes. antitrust litigation, though it could find its way back. And just last week it declined to That closeness and unpredictability made hear Hopmi v Teras, the long-running it hard for practitioners and scholars to case on affirmative action in higher see consistent themes this term. education -- though that issue, too, will be hard for the Supreme Court to avoid in "There are no principles, no trends, just other cases next term. ad hoc opinions," says Michael Carvin, a partner in the Washington, D.C, office of The justices also made a mark by siding Jones, Day, Reavis & Pogue. with criminal defendants in a spate of cases upholding the search warrant Carvin cited the FEC case, Bannidei, and requirement of the Fourth Amendment. Uniad State v Unteil Fods, No. 00-276, In Kyo v Unital State, No. 99-8508, the which struck down a federal program that Court drew a technological line against compelled mushroom growers to pay for thermal imaging devices and other police generic advertising.

39 "The Court is protecting mushroom Copyright * 2001 NLP IP Company growers' speech in UnitadFods, and stolen speech in Bantnidei, but not the core speech of political parties in FEC," says Carvin.

A CASE FOR THE AGES

But no matter what else the Court did in the term that ended on June 28, Bush u Gore will dominate the history books. But for now, the justices are doing all they can to discourage discussion of what went on inside the building during the post- election litigation. Nonetheless, stories are seeping out. One involves a clerk, his wife, and basketball at the nation's highest court.

Jonathan Cohn, a clerk to Justice Clarence Thomas, might have felt like the only person in Washington not consumed by the case. His wife, Rachel Brand, now an assistant White House counsel, was then a lawyer at Cooper, Carvin & Rosenthal and part of the Bush legal team in the Florida courts.

Because of her role in the litigation, Cohn recused himself from any involvement in the intense research and opinion-writing at the Court for the Florida cases. On the day Bush v Gore was handed down, the story goes, Cohn sent an e-mail to fellow clerks to see if anyone wanted to play basketball on the court inside the Supreme Court building. Cohn couldn't find any takers among exhausted clerks, who razzed him in a flurry of e-mails.

Contacted last week, Brand said she and her husband were "very careful" to avoid conflicts by staying away from all aspects of the Supreme Court litigation. She would not confirm the basketball story, but did allow that Cohn "may have been twiddling his thumbs" that fateful day.

40 The Separation of Justice and State

The New York Times

Sunday, July 1, 2001

Linda Greenhouse

There is a paradox that the recent important cases arise -- to one staffed by a Supreme Court term the term that saw the smart, highly professional cadre of court decide a presidential election -- cast academic judges who ' often appear into high relief: rarely has the Supreme disconnected from the practical Court been as deeply embroiled in the implications of the court's work. political life of the country and rarely, if ever, have the justices themselves been so Something has been gained, certainly- a removed from the craft of politics. fluidity with legal doctrine in its many nuances. But something vital has been lost From its earliest days, the court included -- a framework for seeing the world in all members of Congress, cabinet officers its gritty reality from inside the marble and others drawn from the front ranks of cocoon. It is hard to imagine, for example, public life. Consider that 80 years ago, a that justices with substantial political former president, William Howard Taft, experience would blithely assume that began a tenure as chief justice. But though defending against the Paula Corbin Jones Justice Sandra Day O'Connor is a former sexual harassment suit would not be a state legislator, no current justice has held burden for Bill Clinton. elective federal office or even a high appointed one. What is the current court missing without political biographies? Some justices today Conversely, prior judicial experience was see Congress as alien if not enemy long considered irrelevant for service on territory. A former member of Congress the Supreme Court. For example, the could be a useful translator of the early Warren Court included three former Congressional mind, much as Justice senators, two former attorneys general O'Connor, who served in the Arizona and Earl Warren himself, three-time State Senate, has been for the states' governor of California and the interests. Republican's vice presidential nominee in 1948. But all the current justices were To cite an example from the term just judges when appointed, except Chief over, justices with political experience Justice William H. Rehnquist, who was an might not have declared, as the majority assistant attorney general in the Nixon did in a decision limiting the states' administration. exposure to suits under the Amencans With Disabilities Act, that despite holding The result has been to transform the court 12 hearings over three years Congress had from an institution that once drew on the failed to prove state governments had a collective experience of people who had history of discriminating against people lived both sides of the vital intersection of with disabilities. law and politics -- where the most

41 The absence of any retirement But indisputably, the Warren era announcements as the court recessed provoked a strong reaction. "The Thursday means the bitter ideological technocrats we've acquired since then are debate certain to surround President somewhat a reaction to what the Warren Bush's effort to fill the next vacancy is Court did, and to the feeling that if we can some months or years away. So it is a just pick very safe people, they won't do good time to step back and consider the it," Professor Powe said. court from the perspective not of ideology but biography. THERE are more generous ways to characterize the current justices than as From any angle, this is a far different technocrats. No one could doubt their court from the one filled by the politicians intelligence or legal skills. "The Warren of a generation ago, whose judicial Court needed legal craftsmen and the horizons stretched as far as those of the present court is far more adept at legal postwar country itself. The leading craftsmanship," said Walter E. Dellinger, a members of the Warren Court were law professor now in private practice who "larger than life," said Lucas A. Powe Jr., a served as acting solicitor general during law professor at the University of Texas the Clinton administration. He was one of and the author of the recent book, "The several advisers who urged President Warren Court and American Politics" Clinton to resurrect the tradition of (Belknap, 2000), and they regarded the picking justices from public life. The court as a canvas on which to paint on a president did consider Mario M. Cuomo, grand scale. Not only Warren but William the former New York governor, George J. 0. Douglas, a key member of President Mitchell, the former Senate majority Franklin D. Roosevelt's brain trust and leader, and Bruce Babbitt, a former the head of his Securities and Exchange Arizona governor then in the cabinet, for Commission, and Hugo L. Black, the the vacancies that went to Ruth Bader Senate floor manager for much of the Ginsburg and Stephen Breyer. New Deal, had been considered as potential presidential candidates. "It "I said when Thurgood Marshall retired mattered a lot that these were savvy that the court had lost its only -- " Mr. politicians," Professor Powe said. Dellinger said, "and people expected me to say 'black justice.' But what I said was Professor Powe said that while the 'national figure.' The present court could Warren Court is often characterized as use one, someone with real-life having been "counter-majoritarian," experience." forcing on a reluctant public its own vision of what was right but unachievable Justice Lewis F. Powell Jr., who had through democratic politics, this is a headed the Richmond, Va., school board misunderstanding. "It was actually very during the tense years of desegregation, majoritarian," he said. "They removed the was one example Mr. Dellinger cited. blocks to majority rule that were lurking "Powell had a real sense of the way the within the system," like the world works," he said. "The court needs a malapportioned legislatures that fell to the mix of pragmatists and of those moved by Warren Court's one-person, one-vote abstract principle. The biggest mistake a decisions. "They knew what was majority president can make is to name the same sentiment and what wasn't." kind of person over and over."

42 Diversity in the broadest sense is a goal he achieved unanimity for the decision. often cited by those who study the court. "It was great to have one Bill Douglas on PEOPLE who say the court is seriously the court, but you wouldn't want nine of out of touch with the real world invariably them," said Dennis J. Hutchinson, a law cite Clinton v. Jones, the 1997 decision in professor at the University of Chicago and which all nine justices rejected President a former law clerk to both Justice Douglas Clinton's request for temporary immunity and Justice Byron R. White. Justice from the Paula Jones lawsuit. The justices' Douglas's "mercurial intelligence was confidence that the case could be easily better suited to starting an argument," Mr. managed by a sitting president now seems Hutchinson said, "than to doing the tough cavalier, even ludicrous. Even those who day-to-day work of the institution." see it as legally correct -- and many do -- think that justices with government Having veterans of high elective office on experience would have been less the court, he said in an interview, "would dismissive of the president's concerns. give texture to what are otherwise some rather flat and sterile academic debates" On the other hand, times have changed in over questions like what use to make of the law as in the country, and real-world legislative history in interpreting statutes. experience may not be the talisman it A former legislator "could bring a once was. "The law has gotten so perspective on what often looks to the complicated that it's a more theoretical court like the irrational nature of and complex job than it used to be," Mr. legislation," Mr. Hutchinson said. Hutchinson said.

Justices with broad previous experience Inevitably, any justice is the product of have often emerged as influential past experience, which may reveal itself in members of the court. Consider the great surprising ways. Before he joined the chief justice John Marshall, who served in court in 1962, Byron White worked in Congress and was secretary of state under Robert F. Kennedy's Justice Department John Adams; and Charles Evans Hughes, as deputy attorney general, and he went to who twice moved from electoral politics Alabama to deploy federal marshals to to the court. He was a two-term governor protect the Freedom Riders. It proved a of New York when he was named to the formative experience for the crusty court in 1910, left to run for president on conservative, who in his 31 years on the the Republican ticket and rejoined as chief court was never to forsake his justice in 1930. commitment to civil rights nor his view that a strong national government was The effect of a skilled politician on the essential, positions struggling to hold their court can be powerful. Brown v. Board of own on the current court. Justice White Education had originally been argued in dissented from both Miranda v. Arizona 1953, but the justices were deeply divided and Roe v. Wade, but on federal authority and could not coalesce around a decision. he was with the liberals, Mr. Dellinger The case was scheduled for a second noted: "When he thought of states' argument just as rights, Earl Warren was named he saw George Wallace in the chief justice. The former governor was schoolhouse door." able to draw on his arsenal of political Copyright @ 2001 The New York Tirras skills, largely reframing the argument so Company that other justices would agree on it, until

43 Disrobed! Actually, They Think for Themselves

The Washington Post

Sunday, July 1, 2001

Richard W. Gamett

It's probably unavoidable that the Supreme Court term that ended last This reality came through clearly in cases week will be defined in most people's involving the justices' application of minds by a single dominant image. Who judicial tools, methods and dispositions could ever forget the surreal scene that sometimes labeled "conservative" by unfolded simultaneously on the court politicians and commentators: a focus on steps and on millions of TV screens a the Framers' intent, an effort to identify little after 10 p.m. last Dec. 12, when the the original meaning of the Constitution's justices released their decision in Bush v. text and a respect for deeply rooted legal Gore? traditions. In Kyllo v. United States, for But the danger is that the focus on that instance, a sharply divided court held 5 to decision -- so frequently derided as 4 that a police practice of using a partisan -- raises another, cartoon-like "thermal-imaging device" to detect heat image of the court: that of a marble emanating from a suspect's house in order facade behind which disciplined factions to determine whether marijuana was being of squishy liberals and hardhearted grown inside was a "search" of that conservatives wage war over hot-button person's home within the meaning of the issues, while a handful of thoughtful Fourth Amendment and therefore almost moderates anguishes over which side to certainly required a warrant. join. It should be easy to predict the votes of Cases would be simple in a cartoon court the cartoon court in a case like this: The like that. But real cases, like real life, are lock-'em-up "conservatives" (Chief Justice more complicated. William Rehnquist joined by Justices Antonin Scalia and Clarence Thomas) would vote to smooth the way This Supreme for Court term revealed that government drug warriors, while the soft- our justices are neither easy to pigeonhole on-crime "liberals" (Justices John Paul nor easy to predict. Their dispositions are Stevens, Ruth Bader Ginsburg, Stephen not merely "restrained" or "activist." Their Breyer and David Souter) would take a decisions aren't predetermined by the stand for privacy, liberty and maybe even ideological labels slapped on by partisan a little personal experimentation. In animators. Over this past year, they did fact, though, the arch-conservative what they always do: They worked hard to cartoon villain Scalia, joined by Thomas decide difficult cases. And in numerous and liberals Ginsburg and Souter, wrote instances, the results were far removed the majority opinion upholding the from what the "law and order versus sanctity and privacy of the home bleeding and heart" paradigm would lead us to protecting it from high-tech expect. government snooping, over the dissent of the often

44 lonely liberal Justice Stevens, who was joined by the "swing" justices, Anthony Again, we might have expected in Rogers Kennedy and Sandra Day O'Connor. a typecast 5 to 4 split between left and right. Instead, Justices Souter and So what happened? Did Justices Scalia and Ginsburg joined with Rehnquist, Kennedy Thomas lose the script? and O'Connor to affirm the conviction. Scalia, on the other hand -- again joined No. The same judicial tools and by Thomas, but also by the more liberal philosophical commitments that so often justices Breyer and Stevens -- insisted that attract knee-jerk labels like "conservative" the Constitution did not permit, because compelled Scalia and Thomas to the the Framers would not have permitted, "liberal" result in Kyllo. The text of the the Tennessee courts to so dramatically Constitution, after all, clearly guarantees change the rules of the game in the course the right to "be secure in [our] houses" of a criminal case. it is, Scalia wrote, one from "unreasonable searches and of the most "widely held value- seizures." This, for a conservative like judgmentfs] in the entire history of human Scalia, is not a right that should wax and thought" -- and one incorporated into our wane with the times and technology. Constitution at the founding -- that a Scalia was not out to unearth new rights in court "cannot make murder what was not a "living" Constitution. It is a deeply murder when the act was committed." rooted principle of Anglo-American law and tradition that the privacy of the home Another noteworthy instance of a justice is protected against government intrusion. throwing out the cartoon court's Scalia's purpose was, as he put it, to ideological playbook was Breyer's vote in preserve "that degree of privacy against Good News Cub v. Milford Central government that existed when the Fourth School, a First Amendment case. As he Amendment was adopted." had in last year's Mitchell v. Helms -- where the court held that the First Rogers v. Tennessee was another Amendment's Establishment Clause surprise to those who subscribe to the permitted governments to help students image of the cartoon court. Wilbert by loaning educational materials and Rogers had been convicted of murder equipment to private and religious schools when the man he had stabbed died after -- Breyer again parted company with his 15 months in a coma. As Rogers's liberal strict separationist colleagues. He lawyers pointed out to the Tennessee joined Thomas's majority opinion stating courts, however, the traditional criminal- that the First Amendment does not law rule -- and the rule in Tennessee at permit a public school to discriminate the time -- was that no one could be against a student group on the basis of its convicted of murder unless his victim religious activities and expression. died within "a year and a day." (This rule If other private groups are permitted to made sense when life was precarious, meet after hours on school medical care spotty at best and forensic grounds, these two supposed opponents pathology little more than guesswork) agreed, then the Constitution neither The Tennessee court acknowledged the requires nor permits government officials rule but then discarded it as outdated (as to single out religious groups for most states had already done), and unfavorable treatment. affirmed Rogers's murder conviction.

45 The Good News decision not only takes speech and associational rights that our us beyond the caricatures, like Kyllo and Founders sought to defend." Rogers. It also provides additional support And in a concurring opinion in Lorillard for efforts to increase parental choice in Tobacco v. Reilly, the tobacco-advertising education by allowing low-income parents case decided on the last day of the term, in failing districts to choose religious he continued his efforts to afford schools for their children and for commercial speech the full protection proposals to better serve people in need that, in his view, the First Amendment of social and other services by permitting requires. (It's worth noting, as long as religious groups to provide government- we're debunking stereotypes, that Thomas funded assistance. More generally, has frequently been joined in this effort by Breyer's votes in Mitchell and Good News "liberal" Justices Ginsburg and Stevens.) illustrate the growing acceptance of the view -- one the partisan cartoon would tag Now, there's no denying that stories of as "conservative" -- that the Constitution partisan justices, scheming law clerks and prohibits government establishment of a court ripped apart by culture wars make religion in order to protect religious for good copy. And like any caricature, the freedom, but does not require cartoon that results is not entirely government to sweep religious expression inaccurate: Roadrunners don't actually and activity from public life. burn up desert highways, either, chased by coyotes on Acme rockets, but they are Finally, probably no justice has been more pretty speedy little birds. It's true that the often caricatured -- whether out of cruelty, court decides many close and difficult condescension, ignorance or good-faith cases -- if they were easy, after all, they disagreement -- than Clarence Thomas. would not end up in the Supreme Court. More and more, though, thoughtful It's true that one can identify "blocs" of observers and scholars of all political philosophically simpatico justices; that stripes are taking notice of his well- some lean left while others lean right; and crafted, rigorous and challenging opinions. that, in many close cases, the swing votes Not only did he author the lead opinions of Justices O'Connor or Kennedy in Mitchell and Good News Club, he also determine the outcome. It's also true, issued provocative separate opinions m a though, that the court is unanimous, or number of other First Amendment cases. nearly so, far more often than it is ideologically splintered. In FEC v. Colorado Republican, he led the four dissenters, arguing powerfully In the end, Bush v. Gore notwithstanding, that however you dress them up, the court is more of a good-faith restrictions on political parties' efforts to intellectual community than a fever support their preferred candidates cut to swamp of ideological intrigue. That's the the heart of the rights guaranteed by the image -- not the cartoon -- we should First Amendment. Along the way, he got keep in mind in one of the term's best lines, expressing "baffle[ment]" that "this Court has Copyright © 2001 The Washington Post extended the most generous First Company Amendment safeguards to filing lawsuits, wearing profane jackets, and exhibiting drive-in movies with nudity, but has offered only tepid protection to the core

46 With Conservative Edge, High Court Cuts a 'Wide Swath Law: Justices End Term Highlighted by Bush v. Gore but Sprinkled with Far- reaching Decisions

Los Angeles Times

Sunday, July 1, 2001

David G. Savage

The Supreme Court term that ended last One is judicial assertiveness, a week showed again that the justices are willingness to intervene and reverse not shy about imposing their will-- decisions made at other levels of whether it is deciding a presidential government. election, managing the use of public school buildings or even determining the The second is ideological. On matters rules of professional golf. that divide liberals and conservatives, Chief Justice William H Rehnquist They are known as the "Supremes" in continues to be able to muster a narrow Washington, and for good reason. conservative majority. He can almost Confident of their abilities and always rely on Justices Antonin Scalia determined to have the last word on the and Clarence Thomas, and usually on law, the justices rarely defer to the Justices Sandra Day O'Connor and decisions of others. Anthony M. Kennedy.

Their boldness and decisiveness was on Besides the Florida case, these justices display in this term's most memorable voted together in 14 other disputes that case, Bush vs. Gore. ended in 5-4 decisions. In these rulings, for example, the court declared that: On a Saturday in mid-December, the court on a 5-4 vote issued an emergency * Congress cannot protect state order to stop a statewide hand recount employees with disabilities from job of presidential votes in Florida. And late discrimination. The decision in Alabama the following Tuesday, the court issued vs. Garrett rejected a discrimination an unsigned opinion, accompanied by claim brought by a nursing supervisor four dissents, that said the recount was who was demoted after she was treated unconstitutional and could not continue, for breast cancer. States have a effectively making George W. Bush the "sovereign immunity" that shields them presidential winner over Al Gore. from suits, the court said.

While these decisions will be long * Federal environmental regulators debated, the court's handling of the case cannot protect isolated wetlands and highlights two trends on display ponds. The Clean Water Act does not throughout the year. reach these inland waters, it said.

47 * The Civil Rights Act of 1964 does not liberal coalition of John Paul Stevens, authorize lawsuits from blacks, Latinos David H Souter, Ruth Bader Ginsburg or minontes over policies of states, and Stephen G. Breyer. schools, colleges or the police that have a discriminatory effect on them. The law O'Connor joined this bloc in a North covers only claims of intentional Carolina case to give states more leeway discrimination, it said. to cluster black voters in Democratic- leaning electoral districts. So long as * Local school officials cannot close their districts are redrawn for political reasons, buildings to Bible study groups if others not racial ones, they are constitutional, are allowed to meet there. Religious the court said. groups have a free speech right to be included, it said. And on a 6-3 decision--with O'Connor, Kennedy, Stevens, Souter, Ginsburg and * State and local officials may not restrict Breyer in the majority--the court limited the advertising of cigarettes to shield the power of police in the war on drugs, children. The 1st Amendment protects striking down the use of roadblocks the right to advertise, it said. aimed solely at searching for narcotics.

Years ago, conservatives complained Even the rule makers in pro sports were about the court's liberal activism and its not beyond the court's reach. On a 7- 2 willingness to oversee how police vote, the justices told PGA Tour Inc. questioned suspects, how schools dealt that it must allow disabled golfer Casey with prayer and how states administered Martin to ride in a cart so that he can the death penalty. compete in a tournament.

These days, the court has become more Last week, the immigration reform laws conservative, but several of these rulings of 1996 came under attack. suggest that judicial activism has not waned. Kennedy joined with the liberal group to rule that the courthouse is not closed to "It's true across the board. [The justices] legal immigrants facing deportation don't defer to anyone," said former U.S. because of a criminal record. The Solicitor General Walter E. Dellinger. Republican Congress had voted to make such deportations virtually automatic, The court's more liberal members did even for those immigrants whose crime score some important victories during was a minor theft or the sale of a small the term. Indeed, the court turned an amount of drugs. increasingly skeptical eye on several laws that had been passed by a Republican- Two principles were at issue in the controlled Congress. immigration cases. First, federal officials have broad authority over the In 1996, GOP-backed legislation barred immigrants. But second, the federal legal aid lawyers from going to court to judiciary--and ultimately the Supreme challenge welfare reform laws. But on a Court--has the power to decide matters 5-4 vote this year, the court tossed out concerning constitutional rights. this restriction as unconstitutional. Kennedy cast the key vote by joining the

48 The Republican Congress went a bit too Northwestern University law professor far, even for a conservative-leaning Martin Redish. court, by declaring that "no court shall have the jurisdiction to review any final The advertising disputes involved order of removal" for an immigrant cigarette makers, mushroom growers and criminal. political parties.

This declaration waved a red flag in front The cigarette makers won a free-speech of the justices, who think they have the ruling that knocks down local and state final word on the law. And not advertising restrictions, and the surprisingly, they struck it down. mushroom growers won the right to refuse to pay for generic ads promoting Still, the practical effect of the the virtues of their product. immigration ruling is likely to be limited. But the political parties lost their claimed In its ruling, the high court said that 1st Amendment right to spend freely to immigrants whose crimes occurred advertise the virtues of their candidates. before 1996 can still seek a waiver of deportation from the Immigration and Inconsistency aside, the conservative Naturalization Service. But this ruling justices these days vote more often in did not alter the law for those who favor of free speech claims, said UCLA committed crimes since 1996. They may law professor Eugene Volokh. He has file a writ of habeas corpus in a federal tracked 1st Amendment cases for seven court, but they have little grounds for years, and he said Kennedy, an appointee winning their claims. of President Reagan, votes most often for free speech. Next in line are Thomas Some immigrant rights lawyers said they and Souter. feared the high court's rulings would be seen wrongly as major victories. Breyer, a Clinton appointee, votes least often in support of free speech. "This decision was great for a limited class of people, those who pleaded guilty Also unpredictable is the court's lineup before 1996. It doesn't really do anything on cases involving the 4th Amendment for those whose cases came after 1996," and its ban on "unreasonable searches said Manuel Vargas, who heads the and seizures." immigrant rights project for the New York State Defenders Assn. "The law is In May, Souter allied himself with the very harsh for those people, and this conservative bloc in a decision that doesn't change it. Only new legislation explored the "nightwalker" statutes of can change it." the Middle Ages, as well as the "vagabond" laws brought to the Three rulings last week on advertising American Colonies from England. In and free speech left 1st Amendment writing the majority opinion, Souter scholars perplexed. concluded that the 4th Amendment was not intended to restrict the power of "They don't know how to deal with the authorities to arrest a person who was role of money and speech, and the seen committing an offense in public, no decisions are incoherent," said matter how minor. Therefore, a Texas

49 police officer did not violate the 4th Amendment when he arrested a mother and took her to jail for not wearing her seat belt.

But a few weeks ago, Scalia wrote a liberal-sounding majority opinion joined by Souter. They concluded the 4th Amendment as originally written was intended to protect the privacy of homes. And therefore it was unconstitutional for the police to scan a home with a heat detector in search of a hothouse for growing marijuana.

In dissent, Stevens and O'Connor wondered how it could be reasonable to seize a person for not wearing a seat belt but unreasonable to use a scanner on a public street.

O'Connor's dissents are rare, however, and she figures to hold the key vote on three major issues coming before the court next term.

The justices will decide whether mentally retarded defendants can be executed and whether the federal government can use affirmative action policies when awarding contracts. The third case, pending appeal, will test whether states can give tax-funded vouchers to parents to send their children to religious schools.

50 In Year of Florida Vote, Supreme Court Also Did Much Other Work

The New York Times

Monday, July 2, 2001

Linda Greenhouse

The year the court picked the president: a narrow majority viewed laws that cut the Supreme Court's 2000-2001 term will back on immigrants' ability to challenge always be known as that, and deportation and detention policies as a undoubtedly, in the view of many people, threat to the principle that the it will be remembered for that Constitution protects noncitizens as well extraordinary event alone. as citizens. The court curbed the reach of the 1996 legislation and refused to give But there were many other elements to the traditional judicial deference to the term, and many lenses through which inmigration policies adopted by the to view the 79 decisions the court issued. executive branch.

Through one lens, the term was a Examining another portion of the 1996 fascinating report card of sorts on how legacy, new restrictions on the ability of the two elected branches of government lawyers paid with federal money to behaved during a previous election year, provide legal services to poor clients, the 1996, when conservatives in Congress court ruled that restrictions on the type of were in the ascendancy and Democrats arguments that the lawyers could make in were on the defensive on a range of issues welfare cases violated the First bearing on crime, immigration and social Amendment. policy. Bills passed that year and signed into law by President Bill Clinton have Through another lens, the term was a spawned a great deal of litigation, with continuation of the Supreme Court's several cases reaching the court this term. federalism revolution, arguably the most consequential development in Over the last several years, including this constitutional law of the last decade. By term, the court has upheld most the same 5-to-4 vote by which it has restrictions the 1996 Congress placed on decided half a dozen related cases, the the ability of prison inmates to gain access court ruled that Congress did not have the to court. That is not surprising, because constitutional authority to open state the 1996 legislation in effect codified a governments to lawsuits by their number of the Rehnquist Court's own employees for violations of the Americans initiatives, which reduced federal court With Disabilities Act. jurisdiction over cases brought by state pnsoners. The decision in Board of Trustees of the University of Alabama v. Garrett reflected But the justices' response to the 1996 a sharply narrowed view of Congress's immigration laws was different, power to enact legislation to enforce the significantly so. In two decisions this term, 14th Amendment's guarantee of equal

51 protection. Even more than the earlier court invalidated the advertising decisions, it raised the question of how far restrictions while finding no need to the court was prepared to go in curtailing revisit its longstanding approach to the authority of Congress to make commercial speech. national policy binding on the states. The court turned down two cases raising As it has every term since the mid- 1990's, constitutional questions about affirmative the court invalidated at least parts of action in public university admissions -- several federal statutes. This term, it an issue that nonetheless appears to be rejected the provision of the disability law heading inexorably for a place on the the court addressed in the Garrett case; court's docket within the next term or the restriction on welfare suits in the legal two. services law; a law requiring mushroom producers to pay for a government- Despite seven years without a change of sponsored program that advertises membership on the court -- the longest mushrooms; and a provision of the such period since the 1820's -- and despite federal wiretap law under which the press feverish speculation, no one retired. could be found liable for publishing intercepted material. During the term that began last Oct. 2 and concluded on June 28, the court received Through still another lens, the term about 7,700 new cases and agreed to offered evidence that even some of the decide 99. It issued 79 decisions (with the more conservative justices were beginning remaining cases to be argued and decided to share the public's discomfort with the in the next term), up slightly from the 73 privacy implications of some current law decisions in the previous term but many enforcement strategies. The court found fewer than the 150 or so that the court unconstitutional the warrantless use of routinely decided in the 1980's. thermal imaging devices that can detect patterns of heat emerging from private Voting statistics provide a window on the homes; police roadblocks that use trained court's divisions, which are at once more dogs to sniff cars for illegal drugs; and stark and more malleable than they might secret drug tests on unconsenting appear. Twenty-six of the 79 cases, or 33 pregnant women seeking care at a public percent, were decided by votes of 5 to 4, hospital. the highest proportion of such votes since the current justices began serving together On the other hand, the court gave the in the 1994-95 term. police broad discretion to make full custodial arrests, with the consequent In 1999-2000, 20 out of 73 decisions, or power to conduct searches, for minor 27 percent, were by 5-to-4 votes. The offenses. statistics for the previous five years are: 1998-99, 16 out of 75, 21 percent; 1997- The term was also notable for what did 98, 15 out of 91, 16 percent; 1996-97, 17 not happen. In a campaign finance case out of 80, 21 percent; 1995-96, 12 out of from Colorado, the court did not 75, 16 percent; and 1994, 16 out of 82, 20 repudiate its long-held view that tight percent. limits on campaign contributions do not violate the First Amendment. In a tobacco The cases on which the court divided 5 to advertising case from Massachusetts, the 4 ranged from the monumental, like Bush

52 v. Gore, to the more routine or obscure, also frequent dissenters, with 19 and 18 like a dispute between the United States dissents, respectively. Justice Souter had and Idaho over title to submerged lands 16 and Chief Justice Rehnquist had 14. under Lake Coeur d'Alene. Six out of nine civil rights cases were decided by 5-to-4 Following is a summary of the term's votes. most important decisions:

As in the past, the bloc of Chief Justice The Presidential Election William H Rehnquist and Justices Antonin Scalia, Clarence Thomas, In its quest to preserve an infinitesimal Anthony M. Kennedy and Sandra Day margin in Florida and win the state's O'Connor dominated in the closely decisive 25 electoral votes, the Bush divided cases, prevailing in 14 of the 26. campaign brought two cases to the court, The four more liberal justices -- John Paul which decided them over an intense 18- Stevens, David H. Souter, Ruth Bader day period culminating with the 5-to-4 Ginsburg and Stephen G. Breyer -- ruling that determined the outcome of the prevailed in eight. (The remaining four election. cases did not conform to either pattern.) The first case, Bush v. Palm Beach Last year the division was even sharper, County Canvassing Board, No. 00-836, with the more liberal justices prevailing in was an appeal from the Florida Supreme only one of the 5-to-4 cases, when Justice Court's Nov. 21 decision that added 12 O'Connor joined them to invalidate a days to the deadline for certifying the Nebraska abortion ban. This term, Justice vote. Argued on Dec. 1, this case resulted O'Connor joined them five times and on Dec. 4 in a unanimous, unsigned and Justice Kennedy joined them in three opaque opinion vacating the state court's other cases. decision and requesting clarification of the basis for it. Justices Kennedy and O'Connor continued to hold the balance of power Without answering the justices' questions, on the court. They were the only two the Florida Supreme Court then turned to justices to dissent fewer than 10 times the Gore campaign's contest of the newly during the temt Justice O'Connor certified results and ordered a statewide dissented nine times and Justice Kennedy manual recount of ballots that when seven times. In six of those cases, he counted by machine had not indicated a signed another justice's dissenting choice for president. The Bush campaign opinion. He felt moved to write his own appealed immediately and, as the recount dissenting opinion only once, in an got under way, won a stay from the immigration case decided on the term's justices by a vote of 5 to 4. final day. In the 5-to-4 cases, each voted in the majority 20 times, more than any The court then heard the case, Bush v. other justice. Gore, No. 00-949, on Dec. 11 and decided it the next day in an unsigned During the term as a whole, Justice opinion that contained two conclusions: Stevens dissented most often, 25 times, that the lack of uniform standards for the followed by Justice Breyer with 23 recount violated the 14th Amendment dissents and Justice Ginsburg with 21. On guarantee of equal protection, and that the right, Justices Scalia and Thomas were there was no time for the state to fix the

53 problem and keep the recount going. imaging device, which can detect Thirty-six days after election day, the 2000 suspicious patterns of heat emerging from election, and the Supreme Court's role in a private home, without obtaining a it, were history. The election was over. warrant. Justice Scalia said in his majority The five in the majority were Chief Justice opinion that the Constitution's framers Rehnquist and Justices O'Connor, would have regarded such technology as Kennedy, Scalia and Thomas. sufficiently intrusive to require the same warrant they demanded for physical entry Criminal Law into a private home. Justices Souter, Thomas, Ginsburg and Breyer joined the Three decisions interpreting the Fourth majority in Kyllo v. United States, No. 99- Amendment's prohibition against 8508. unreasonable searches indicated that the court shared the country's concern about But in a fourth case, the court upheld the impact of some modem law broad discretion for the police by ruling 5 enforcement strategies on personal to 4 that an officer who observes even a privacy. minor infraction, like not wearing a seat belt, may make a full custodial arrest even In Indianapolis v. Edmund, No. 99-1030, if the maximum penalty for the offense is the court ruled 6 to 3 that police a fine without jail time. The decision in roadblocks aimed at discovering drugs in Atwater v. City of Lago Vista, No. 99- cars through the use of trained dogs are 1408, upheld the arrest of a Texas woman unconstitutional. Justice O'Connor said in who was driving her children home from her majority opinion that unlike drunken soccer practice without seat belts when driving roadblocks, which the court has she was taken in handcuffs and placed in a upheld on public safety grounds, narcotics jail cell until she posted a $310 bond for roadblocks serve a general law the $50 offense. Justice Souter wrote the enforcement purpose and so cannot majority opinion, joined by Chief Justice escape the Fourth Amendment's Rehnquist and Justices Scalia, Kennedy requirement that searches be based on and Thomas. suspicion of individual wrongdoing. Chief Justice Rehnquist dissented, along with The court overturned the death sentence Justices Scalia and Thomas. of a retarded man, Johnny Paul Penry, on the ground that the instructions given to By the same 6-to-3 vote, the court ruled the Texas jury that sentenced him did not that a public hospital cannot meet the standards the justices set when constitutionally test maternity patients for they previously considered his case in a illegal drug use without their consent if 1989 decision. The flawed instructions did the purpose is to alert the police to a not guarantee that the jury would be able crime. Justice Stevens wrote the opinion to weigh Mr. Penry's retardation and in Ferguson v. Charleston, No. 99-936, a childhood experience of abuse as factors challenge to a drug-testing program the in their decision, Justice O'Connor said city of Charleston, S.C., put in place at its for the 6-to-3 majority in Penry v. public hospital at the height of concern Johnson, No. 00-6677. Chief Justice over so-called crack babies a decade ago. Rehnquist and Justices Scalia and Thomas dissented. Next term, the court will In the third case, the court ruled 5 to 4 consider the deeper question that this case that the police may not use a thermal

54 did not pose: whether the Constitution legislative authority, Justice Scalia said for bars executing the retarded. the court in Whitman v. American Trucking Associations, No. 99-1257. Federal Authority Interpreting the Clean Water Act, the The court's federalism revolution, which court overturned a 15-year-old Army over the last six years has resulted in new Corps of Engineers regulation and held constraints on Congressional authority that the law does not authorize the and a corresponding expansion of the government to regulate the dredging and states' immunity from federal power, filling of isolated ponds and wetlands. The continued with a 5-to-4 ruling that state vote in Solid Waste Agency v. United employees cannot sue for damages for States Army Corps of Engineers, No. 99- violations of the Americans With 1178, was 5 to 4, with a majority opinion Disabilities Act. by Chief Justice Rehnquist joined by Justices O'Connor, Scalia, Kennedy and Chief Justice Rehnquist's majority opinion Thomas. in Board of Trustees of the University of Alabama v. Garrett, No. 99-1240, held Ruling on the scope of federal drug laws, that while Congress intended to open the the court held 8 to 0 that Congress has states to such lawsuits, it had not validly not recognized a "medical necessity" done so, for two reasons. exception to the prohibition on distributing marijuana. The decision, First, the court said, the 1990 law lacked upholding a federal court injunction, was a an adequate legislative record showing blow to the marijuana-distribution co-ops that discrimination by the states that have grown up in California and themselves, as opposed to society in other states where state law authorizes the general, against people with disabilities use of marijuana to relieve symptoms of was a problem of sufficient dimension to various medical conditions. But the justify Congressional intervention. decision, United States v. Oakland Second, the court said, Congress cannot Cannabis Buyers' Cooperative, No. 00- place burdens on the states that go 151, did not directly address the state laws beyond the Constitution itself, and and left many questions unanswered. discrimination against employees with Justice Thomas wrote the opinion. Justice disabilities, while violating federal policy, Breyer -- whose younger brother, Charles, does not violate the Constitution. The ruled on the case as a federal district judge others in the majority were Justices in San Francisco -- did not participate. O'Connor, Scalia, Kennedy and Thomas. Speech and Press In the term's most important regulatory ruling, the court unanimously rejected an The court ruled 5 to 4 that Congress industry attack on the Clean Air Act and violated the free speech rights of lawyers ruled that in setting air quality standards, in the federally financed legal services the Environmental Protection Agency is program when it barred them from going to consider only public health rather than to court on behalf of indigent clients to the cost-benefit analysis proposed by the challenge the validity of welfare laws and industry challengers. The broad discretion regulations. The 1996 law was an effort to Congress gave the agency did not amount insulate the new federal welfare law from to an unconstitutional delegation of legal attack But the law "distorts the legal

55 system," Justice Kennedy said for the invite circumvention of other limits, majority in Legal Services Corporation v. Justice Souter said in Federal Election Velazquez, No. 99-603. Justices Stevens, Commission v. Colorado Republican Souter, Ginsburg and Breyer joined the Federal Campaign Committee, No. 00- majority. 191. Justices Thomas, Kennedy and Scalia and Chief Justice Rehnquist dissented. Giving the edge to the public's right to know over claims of personal privacy, the The court upheld the right of the tobacco court ruled 6 to 3 that the press may not industry to advertise its products to adult be held liable for publishing illegally consumers, striking down a far-reaching intercepted information if the subject is of advertising ban in Massachusetts. While "public importance" and the press did not taking different approaches to the case, all participate in the interception. The nine justices basically agreed in Lorillard majority opinion by Justice Stevens thus Tobacco v. Reilly, No. 00-596, that the created a narrowly defined First ban violated the tobacco advertisers' First Amendment exception to the federal Amendment rights. The court also found wiretap law, which imposes liability on the state restrictions on advertising for anyone who discloses the contents of cigarettes, as opposed to cigars and illegally intercepted communications. smokeless tobacco, to be pre-empted by Justices Kennedy, Souter, Ginsburg, federal law. The pre-emption analysis was Breyer and O'Connor joined the majority 5 to 4. Justice O'Connor's opinion was opinion in Bartnicki v. Vopper, No. 99- joined by Chief Justice Rehnquist and by 1687. Justices Scalia, Thomas and Kennedy.

The court ruled 6 to 3 that as a matter of The court ruled that an assessment on free speech, public schools must open mushroom growers to pay for generic their doors to after-hours religious mushroom advertising under a federal activities on the same basis as any other agricultural program violated the First after-school activity. The decision, Good Amendment right against compelled News Club v. Milford Central School, No. speech. Justice Kennedy wrote the 99-2036, was a victory for a nationwide opinion in United States v. United Foods, evangelical Christian organization that No. 00-276. Justices Breyer, Ginsburg and seeks to operate after-school Bible clubs O'Connor dissented. for young children. To exclude this activity while permitting others would be Finally, there was a statutory rather than unconstitutional viewpoint discrimination, constitutional decision that involved the Justice Thomas said for the majority. press. In New York Times v. Tasini, No. Chief Justice Rehnquist and Justices 00-201, the court ruled that a group of O'Connor, Scalia, Kennedy and Breyer publishers, including The Times, infringed were also in the majority. the copyrights of freelance contributors by making the freelancers' work accessible The court reiterated its view of the without permission on electronic potentially corrupting influence of money databases after publication. The court did in politics, upholding a federal limit on the not decide what remedy the freelance amount parties may spend in coordination writers should receive. Justice Ginsburg with their own candidates. To exempt wrote the 7-to-2 decision, with Justices parties from the limits, as the Colorado Stevens and Breyer dissenting. Republican Party requested, would be to

56 Civil Rights opposition of the P.G.A. Tour. Writing for the majority in P.G.A. Tour v. Martin, The court looked in both directions in No. 00-24, Justice Stevens said the cart civil rights cases, indicating a deep split would not fundamentally alter the game, that may play out in future cases. the essence of which is shot-making, and was the kind of reasonable A 5-to-4 decision upheld the latest accommodation the law required. Justices boundaries of North Carolina's long- Scalia and Thomas dissented. disputed 12th Congressional District, ruling that the circuitous 47 percent black Immigration district was the permissible result of partisan considerations rather than an By a 5-to-4 vote, the court rejected the unconstitutional racial gerrymander. White House view that Congress in 1996 Justice Breyer's majority opinion in Easley had stripped federal judges of the v. Cromartie, No. 99-1864, introduced authority to hear challenges to deportation some pragmatic flexibility into the court's policies. Reviewing one such policy, the treatment of legislative districts drawn court said deportation was not automatic with an eye toward racial composition as for immigrants who had pleaded guilty to one of several factors. Justice O'Connor, crimes before Congress changed the law who had previously led the court in and barred administrative waivers of striking down race-conscious districts, deportation for "criminal aliens." To give joined the majority, as did Justices harsh new consequences to old plea Stevens, Souter and Ginsburg. bargains made the law impermissibly retroactive, Justice Stevens said for the Another 5-to-4 decision substantially court in Immigration and Naturdlization limited the effectiveness of one of the Service v. St. Cyr, No. 00-767. Chief most important civil rights laws, Title VI Justice Rehnquist and Justices Scalia, of the Civil Rights Act of 1964, which O'Connor and Thomas dissented. bars discrimination in programs that receive federal money. In an opinion by The court ruled that the government Justice Scalia, the court ruled that cannot keep a deportable alien in Congress did not intend private indefinite detention for lack of a country individuals to be able to bring suits under willing to receive him. Zadvydas v. Davis, Title VI except for intentional No. 99-7791, was another 5-to-4 decision. discrimination. Federal regulations barring This time, Justice O'Connor voted with actions that have a discriminatory impact, Justices Stevens, Breyer, Souter and regardless of intent, could not provide a Ginsburg, while Justice Kennedy basis for private lawsuits, he said. Chief dissented along with Justices Scalia and Justice Rehnquist and Justices O'Connor, Thomas and Chief Justice Rehnquist. Kennedy and Thomas joined the opinion in Alexander v. Sandoval, No. 99-1908. By a 5-to-4 vote, the court rejected a constitutional challenge to an immigration In an interpretation of the Americans law provision that makes it easier for a With Disabilities Act, the court ruled 7 to child born to unwed parents overseas to 2 that Casey Martin, a golfer with a be deemed an American citizen if the disability that prevented him from walking mother rather than the father is an the course, was entitled to use a golf cart American. The American father of a son during tournament play despite the born in Vietnam to a Vietnamese mother

57 challenged the law as violating his equal protection rights. But Justice Kennedy Federalism said for the majority that the law properly reflected "basic biological differences" Board of Trustees v. Garrett between men and women, with mothers' States are immune from job identity not needing further proof because discrimination suits under the Americans they are inevitably present at birth. Chief With Disabilities Act. Justice Rehnquist and Justices Stevens, Scalia and Thomas were the others in the Free Speech majority in Nguyen v. Immigration and Good News Club v. Milford Central Naturalization Service, No. 99-2071. School Equal access for after school religious Labor clubs.

A 5-to-4 decision gave employers a major Seat belt arrest victory by holding that companies can Atwater v. Lago Vista enforce agreements to submit all Police can make custodial arrests for workplace disputes to binding arbitration minor offenses. rather than litigation. Justice Kennedy wrote the decision in Circuit City Stores v. Illegal search Adams, No. 99-1379, which resolved a Kyllo v. United States dispute over whether the Federal Use of thermal imaging devices is a search Arbitration Act applies to ordinary requimng a warrant. contracts of employment. Chief Justice Rehnquist joined the majority opinion, Campaign finance along with Justices O'Connor, Scalia, Federal Election Commission v. Colorado Kennedy and Thomas. Republicans Upheld limits on party spending in Property Rights coordination with candidates.

The court ruled 5 to 4 that someone who Voting rights bought property after restrictions on Easleyv. Cromartie development were in place could still Upheld North Carolina's 12th challenge the restnictions as an Congressional District against racial unconstitutional "taking" of private gerrymander challenge. property. The court reinstated a lawsuit by a waterfront landowner in Rhode Island Immigration who acquired his 20 acres after the state Immigration and Naturalization Service v. put landfill restrictions in place. The St. Cyr question for future cases is what weight Federal courts keep jurisdiction over courts will give to the date of ownership deportation policies. in weighing the reasonableness of a landowner's development expectations. Illegal search Justice Kennedy wrote the opinion in Ferguson v. Charleston Palazzolo v. Rhode Island, No. 99-2047, Testing pregnant women's urine for drugs with Chief Justice Rehnquist and Justices without consent is unconstitutional. O'Connor, Scalia and Thomas voting in Illegal search the majority. Indianapolis v Edmund

58 Roadblocks where trained dogs sniff cars and not cost in setting new clean air for drugs are unconstitutional. standards.

Clean Air Act Copyright * 2001 The New York Ti3 Whitman v. Amer. Trucking Assns. Company E.P.A. may consider only public health

59 "Rehnquist Court" Sets Term Record Chief Justice Leaves His Mark on Decisions

The Washington Times

Monday, July 23, 2001

Frank J. Murray

The current Supreme Court has If it were a beauty contest, Justice completed a historic seven terms and, Anthony M. Kennedy would be Mr. despite internal frictions and speculation Congeniality for being most agreeable. about retirement, the "Rehnquist court" He voted with the majority 92.4 percent continues to flex its muscles. overall and a stunning 86 percent of split decisions. Chief Justice William H. Rehnquist makes his own impact felt mainly by Court analysts believed that some exercising the prerogative of the senior Rehnquist votes that appeared to go justice in the majority to assign himself against the chief justice's own or a kindred colleague to write the conservative grain likely were cast for opinion that goes into the lawbooks and lost causes so that he, and not Justice governs future cases. Stevens, would decide who wrote for history. Over the past seven terms - the longest period without a vacancy since the court When stakes were highest and the vote was increased to nine justices - the chief closest at 5-4, the one member of the justice has voted with the majority in 476 current court whom both sides were of the 553 cases decided. He likely to skip over most often was Justice thereby had the last word in choosing an Ginsburg. author to cany out the high court's "province and duty ... to say what the She hasn't written the opinion in any 5-4 law is." case for more than five years.

Fully 44.5 percent of the current court's Overall, Justice Ginsburg wrote only cases (246) were decided unanimously four of the 116 opinions that were while votes on the other 307 split, 116 of decided by 5-4 vote since Stephen G. them 5-4. Breyer replaced Harry A. Blackmun on Aug. 3, 1994. The four liberal justices haven't fared well in the close votes. On the 116 One of those four opinions was assigned appeals decided by a single vote since to Justice Ginsburg when Justice Sandra October 1994, Justices John Paul Day O'Connor was the senior justice in Stevens, David H. Souter, Ruth Bader the majority. Justice O'Connor could Ginsburg and have named herself but has not done so Stephen G. Breyer were in the majority on either occasion when she was senior. only 40 percent of the time. If court competition were a sport, those four In the only other case in which Justice wouldn't make the playoffs. O'Connor was senior justice in the

60 majority of the present court - a 6-3 Kennedy. Justice O'Connor has written ruling on civil procedure - Justice 17 of the 116 cases with 5-4 votes by this Ginsburg also wrote the opinion for the court while Justice Kennedy authored 14 court. and is believed also to have written the unsigned per curiam opinion in Bush v. Justice Ginsburg's other two 5-4 Gore. assignments on the present court were during the 1994 term, her second as a HIGH COURT'S SEVEN TERMS justice. One case dealing with a motor fuel tax was assigned by the chief justice, On Aug. 3, the Supreme Court will have and Justice John Paul Stevens assigned completed seven full years without a the other, which involved a worker vacancy, its most stable period since injury. membership was increased to nine in 1837. Since October 1994, the present Over the same period, the court's most court has decided 553 cases. Some junior member, Justice Breyer, has related numbers: written three 5-4 opinions assigned by the chief justice and eight assigned by * Median age of present justices - 65 Justice Stevens when the chief voted the other * Median age of all court retirees - 78 way. * Oldest current justice - 81 Justice Clarence Thomas wrote 10 and Justices Souter and Antonin Scalia each * Youngest current justice - 53 had nine. Seven of those written by Justice Souter were assigned by Justice * Unanimous opinions - 246 Stevens, while Justice Scalia's nine 5-4 opinions for the current court all were * Cases decided 5-4 - 116 assigned by is voting ally, the chief justice. * Clarence Thomas-Antonin Scalia

agreement in split cases - 263

* Stephen Breyer-Ruth Bader Ginsburg Justice Scalia also had the opportunity agreement in split cases - this term to assign one opinion to 219 himself when the chief justice and Justices Stevens and O'Connor voted no. * Wrote most dissents (John Paul Justice Scalia startled court watchers by Stevens) - 110 wnting an opinion ruling that barred police use of a device that detected heat on walls and roof to indicate use of high-intensity * Wrote fewest dissents (Anthony M. lighting at an indoor marijuana farm. Kennedy) - 17

When the vote is close on a major case, Chief Justice Rehnquist typically writes the opinion himself or turns to Justices Most abstentions (Justice Breyer) - 6 Sandra Day O'Connor or Anthony M.

61 * Most opinions (William H Rehnquist) - 70

* Fewest opinions (Justice Stevens- Justice Thomas tie) - 57

62 A Majority of One

The New York Times

June 3, 2001

Jeffrey Rosen

We are all living now in Sandra Day would make this impossible. The Bush O'Connor's America. Take almost any of victory, presumably, cleared the way for the most divisive questions of American a smooth exit: O'Connor, who is 71, life, and Justice O'Connor either has could step down knowing her decided it or is about to decide it on our replacement would be a Republican behalf. The Supreme Court may tell us nominee. Last month, however, soon whether affirmative action in public O'Connor announced that she had "no universities is permissible, and if it does, present plans to retire." Speculation has O'Connor is likely to cast the deciding since focused on whether Chief Justice vote. The court is divided about school William Rehnquist might resign. And if vouchers too; O'Connor's views will he does, there are already Republicans probably tip the scales. and even a few Democrats who have in mind a natural successor Rehnquist's Voting districts drawn for the benefit of Stanford Law School classmate and minorities have to be submitted for fellow Arizonan, Sandra Day O'Connor. O'Connor's approval and stand or fall on whether she finds their shapes bizarre. Whether she becomes the first woman to Roe v. Wade has been tailored according serve as chief justice, O'Connor is to O'Connor's specifications, and judges already the most powerful woman in and legislators have to scrutinize all America. How did she achieve this abortion restrictions in an effort to formidable distinction? Part of the predict whether O'Connor might explanation is the coincidence of her consider them an "undue burden" on the position at the center of a divided court. right to choose. And in December The Rehnquist court frequently decides O'Connor helped to decide the its most important cases by a single vote, presidential election, joining the 5-4 vote with the three conservatives (Rehnquist, to stop the Florida recount and Antonin Scalia and Clarence Thomas), delivering the White House to George joined by the two moderate W. Bush. conservatives (Anthony Kennedy and O'Connor), in the majority and the four Now, 20 years after she took her seat as liberals (John Paul Stevens, David the first woman on the court, O'Connor Souter, Ruth Bader Ginsburg and may see her power grow greater still. Stephen Breyer) in dissent. Kennedy and After one television network prematurely O'Connor have long been competing for called Florida for Al Gore on election the role of decisive swing vote: from night, John O'Connor, the justice's 1994 to 2000, each was on the winning husband, was reported to have expressed side of the same number of 5-4 cases. distress, lamenting that O'Connor Last term, O'Connor wrote only one wanted to retire and that Gore's victory dissenting opinion, approaching Justice

63 William Brennan's record of zero basis of our decision,' I not only dissents in 1967 at the height of the constrain lower courts, I constrain Warren era. myself as well," Scalia declared in his Holmes Lecture at Harvard in 1989. "If But there have been many swing votes in the next case should have such different the history of the court. O'Connor is facts that my political or policy arguably the most powerful of all of preferences regarding the outcome are them because of the distinctive way she quite the opposite, I will be unable to approaches her job. In case after case, indulge those preferences; I have she will join the majority and then write committed myself to the governing a concurring opinion that seems principle." Scalia sometimes betrays his designed to drain her colleagues' own principles -- ignoring the original reasoning of its more general understanding of the Constitution in implications. She has a habit of confining voting rights cases, for example -- but he her vote to the case at hand. Her views reminds us how important it is for judges are so exquisitely calibrated that once in to have principles to betray. a voting rights case she wrote a separate concurrence to her own opinion, By her refusal to commit herself to prompting Pam Karlan, a voting rights consistent principles, O'Connor forces scholar at Stanford Law School, to say, the court and those who follow it to "At last, O'Connor has found someone engage in a guessing game about her she can agree with: herself." wishes in case after case. Each of her decisions is a ticket for one train only. O'Connor's narrow opinions have the This is not to say, however, that there are effect of preserving her ability to change no consistencies that mark her tenure. her mind in future cases. It is not that Over the years she has emerged as the O'Connor is easily swayed by the leader of the federalism revolution that lobbying of her fellow justices: there is may be the Rehnquist court's most little lobbying or horse-trading on the distinctive legacy, returning power from Rehnquist court. (Indeed, the justices Washington to the states. And although rarely have substantive discussions.) It is she is not a committed social that she approaches her job less like a conservative, she is a committed typical justice than like the state legislator antigovernment conservative -- a justice she once was. O'Connor, who prefers eager to second-guess the judgments of vague standards to clear rules, does not state and federal lawmakers and derive her opinions from consistent executives. By refusing to defer to principles that guide her from case to Congress and the president, she has case. Her pragmatic approach allows her enhanced not only her own power but to remain not only at the center of the also the power of the court itself. If she court but also at the center of American is, in fact, nominated as the next chief politics. justice, her generally moderate votes should give less pause than her view that Antonin Scalia, O'Connor's frequent no branch of government is entitled to sparring partner, has noted that deciding respect except the one to which she cases according to principle is the way belongs. that judges restrain themselves. "When, in writing for the majority of the court, I O'Connor was the first woman to be adopt a general rule and say, 'This is the elected majority leader of any state

64 senate in the nation, and her experience Once she makes up her mind, however, as an Arizona legislator continues to O'Connor continues to try to keep her influence the way she approaches her options open. Like a politician, she is job. Most Saturdays when the court is in careful not to tie herself down in the session, she and her clerks meet in future, instructing her clerks to write chambers to discuss the cases that she majority opinions as narrowly as will consider during oral arguments in possible. "She tries very hard to avoid the week to follow. "She makes lunch for broad rules, for fear that if you speak too everybody -- Tex-Mex, Southwestern broadly, you might bind yourself down fare," says Marci Hamilton, a former the road," says one former clerk, who, clerk who is now a professor at Cardozo like most of O'Connor's former clerks I Law School in New York. "She cooks it spoke with, asked not to be identified. up and brings it from home. Then we (The justice was said to be infuriated a would sit down and talk about the cases few years ago by Edward Lazarus's and eat." "Closed Chambers," a tell-all book about the court.) Another former clerk says: There are justices -- Scalia and Thomas, "She's very careful to write minimalist for example -- who conduct their opinions, taking each case one at a time discussions with clerks as freewheeling and trying not to decide too much that's debates about the law. O'Connor's not before the court. She really has no discussions are more formal, like a grand constitutional theory. But that's a senator's receiving briefings from her different sense of calculatedness than the staff. She is unusual among justices in idea that she holds out in order to dictate requiring her clerks to write extensive what the court says, which I didn't see at memorandums about a case before any all." discussion. During the Saturday meetings, a clerk who has prepared a In a C-Span profile broadcast last memorandum will give a brief December, O'Connor described her presentation; then O'Connor will ask the typical day. "I'm a fan of reading a other clerks to make short presentations newspaper in the morning," she said. "By of their own. 5:30 or so I'm awake and ready to get up and get going, and I'm usually outside ... After hearing her clerks' views and looking for the newspaper before it's reviewing the briefs, O'Connor even arrived. And once it does, we have sometimes announces her vote or a little breakfast and read the paper and I suggests that she has not yet made up go down to the court. ... I try to leave her mind. At oral arguments, she is an the house around 7:15 to go downtown active questioner and often makes little and beat some of the traffic. And the effort to conceal her views, confessing first thing I do at the court is have an her ambivalence or revealing her hour of exercise." Since her first days on skepticism about one side or the other. the bench, O'Connor has organized a She is genuinely open-minded in many morning aerobics and yoga class for cases, especially those involving race and female clerks and employees on the religion, and -- like a legislator -- is Supreme Court basketball court, known especially moved by arguments about the as the highest court in the land. practical effects of a decision.

65 More than some of her colleagues, Civil War historian and outings with the O'Connor enjoys the ceremonial aspects justice for white-water rafting, fly fishing of her job and has handled the public and hiking in the Blue Ridge Mountains. scrutiny that accompanies being the first "She loves to hike, she loves skiing, she female justice with poise and confidence. loves tennis, she loves golf," says her According to Ruth McGregor, who brother, H Alan Day. A few days after clerked for O'Connor in 1981 and now deciding Bush v. Gore, she scored her sits on the Arizona Supreme Court, first hole in one. O'Connor received more than 500 letters a week during her first term, and she Early in her tenure, several tried to answer all of them. "The thing I commentators suggested that noticed was how personal the O'Connor's opinions were wntten in a communications were, partly because her distinctively feminine voice. In 1986, hearings had been televised and perhaps Suzanna Sherry, then a law professor at people related more easily to a woman," the University of Minnesota, cited the McGregor says. "People sent hand-knit works of Carol Gilligan on behalf of the socks and homemade fudge and pictures proposition that "while women of their grandchildren." emphasize connection, subjectivity and responsibility, men emphasize autonomy, The mail has tapered off a little over the objectivity and rights." Painting years, but O'Connor continues to travel O'Connor as the apotheosis of the world like a head of state, giving "difference" feminism, Sherry ventured worthy speeches at law-school that the justice's preference for dedications and international events moderation over confrontation -- and about the importance of federalism and community over individualism -- was hard work She is a fixture on the attributable to her sex. O'Connor herself Georgetown party circuit, where her has little patience for these stereotypes, husband, John, a Washington lawyer, is and in a speech at N.Y.U in 1991, she popular for telling humorous stories in strenuously rejected Sherry's thesis. "This Scottish and Irish dialect. She is also 'New Feminism' is interesting but attentive to her press clippings. "Charles troubling, precisely because it so nearly Barkley came to the court one day with echoes the Victorian myth of the 'True Justice Thomas, and Thomas, being the Woman' that kept women out of law for way he is, he doesn't tell anybody about so long," O'Connor declared. "Asking it," recalls a former clerk for another of whether women attorneys speak with a the justices. When O'Connor learned 'different voice' than men do is a that Barkley was in the building, she had question that is both dangerous and him photographed for The Washington unanswerable." Post Style section putting an ornament on the Christmas tree in her chambers. According to Marci Hamilton, the former O'Connor clerk "When you In addition to cultivating her public grow up riding wild horses -- Western persona, O'Connor takes a warm interest women tend not to buy that different in her clerks' welfare and goes out of her voices stuff. They tend to be pretty way to organize events and outings for much in the camp of 'Annie Get Your their amusement and instruction. Clerks Gun': Anything he can do, I can do recall excursions to see the cherry better." blossoms, a tour of Washington by a

66 Being a woman has shaped O'Connor's Insisting that the bill was work far less, it would seem, than being a unconstitutional, O'Connor was the only legislator. O'Connor's service as majority Republican to join three Democrats in leader of the Arizona State Senate was opposing it. "In those days, that was a one of the formative experiences of her very unpopular thing to do," Stump says. life, and it is remarkable how much her Later the Arizona Supreme Court agreed approach as majority leader anticipates with O'Connor's position and struck the role that she would come to play on down the law. the Supreme Court. In the 1970's, the Arizona Senate was almost evenly O'Connor has shown similar divided: 16 Republicans and 14 independence on the Supreme Court, Democrats. Most of the issues that suggesting that the Constitution permits O'Connor faced were practical some aid to religious schools and some challenges -- like the effort to divert race consciousness, but not too much -- water from the Colorado River to which is more or less the view of the Arizona as part of the Central Arizona majority of American voters. A few Project -- and her tendency was to weeks ago, for example, after voting confront them in a bipartisan spirit. "I repeatedly to strike down voting districts can't remember a damn thing we ever drawn for the benefit of minorities, came to blows over really," recalls Bob O'Connor broke rank with her Stump, who was the Democratic conservative colleagues and decided that minority leader during O'Connor's years she could live with a redrawn North as majority leader and is now a Carolina voting district that she had first Republican congressman from Arizona, expressed concern about in 1993. having switched parties in 1982. At the end of each session, Stump says, I called David Garrow, the Pulitzer O'Connor would invite Democrats and Prize-winning author and a Supreme Republicans over to her house for a Court historian at Emory Law School, to bipartisan party, where she would cook ask what he made of her apparent burritos and tortillas. change of heart. "Is there an extensive, deep-seated indecisiveness to her?" According to Stump, O'Connor's chief Garrow asked. "And is there something opposition came not primarily from wrong about using 'indecisive' to Democrats but from the John Birch characterize a female justice?" Garrow wing of her own party, which was posed some more blunt questions. clamoring to abolish the income tax and "Does she at some deep level doubt her investigate the United Nations. "It was own ability? Is that the way to more moderating them than it was understand this two-steps-forward, two- bringing our side around," he says. As steps-back quality to her decision majority leader, O'Connor viewed it as making, that she's not at all certain about her mandate to rein in the conservative her own judgment? If she doesn't lack extremists. And she was independent- the courage of her convictions, she lacks minded enough to break ranks with her the clarity of her convictions." party on issues she cared deeply about. Stump says that the Senate, with These are strong sentiments -- and I overwhelming Democratic and have expressed similar sentiments in the Republican support, passed a law giving past. But those who have worked with direct financial aid to parochial schools. O'Connor insist that she is anything but

67 indecisive, as does O'Connor herself. painted in Southwestern earth tones, has "When I'm at the court faced with a case, a spectacular view of the Capitol and the I try to find out everything about that court steps, where there were protesters case I can," O'Connor told the National demonstrating against Roe v. Wade and Coalition of Cancer Survivorship in Bush v. Gore. Her inner office is 1996. "Then I make my decision, and I decorated with Zuni drums, a Carl Oscar don't look back I do not look back and Borg landscape of the Grand Canyon say, 'Oh, what if I had done the other and George Catlin paintings of a buffalo thing,' or 'Oh, I should have done hunt in the Rocky Mountains. With her something else."' steady gaze and beige suit, O'Connor seemed like a formidable C.E.O. of the Deborah Jones Merritt, another of most powerful corporation in America, O'Connor's former clerks -- she is now but she was also gracious and candid, the director of the John Glenn Institute although understandably wary. (I've at Ohio State -- says: "Indecisive is written critically about several of her probably the last word I would ever decisions.) She came to life when I choose to describe Justice O'Connor. produced a copy of "Where the Bluebird She would listen to all the arguments, get Sings to the Lemonade Springs," a the answers and then be very decisive collection of essays by her favorite about her view in the case." author, Wallace Stegner. And she talked with warmth and enthusiasm about In her decisiveness about the bottom Stegner, the great chronicler of the West line, O'Connor operates in marked who was also her creative-writing teacher contrast to her fellow swing justice, at Stanford. Anthony Kennedy. "I'm more of an agonizer than many of our colleagues," Soon, it was time for our tour. By her Kennedy told me five years ago. In his large desk, there was a cartoon of meetings with clerks, Kennedy O'Connor on a swing being pushed by experiments with different opinions. He Jerry Falwell. Above it was a framed sketches out various arguments on a front page from Newsday celebrating her white board in his chambers, often confirmation in 1981 with the headline announcing that he is persuaded by one "Her Honor." There were photographs position only to return the next morning of O'Connor's three sons and her to declare that he has been thinking grandchildren. As I tried to take it all in, about the case ovemight and now is she bustled me along to the outer office, inclined to take the opposite view. Once past a signed basketball from the U.S. Kennedy makes up his mind, however, Women's Olympic team. Suddenly, the he is far more willing than O'Connor to tour was over. Realizing that I had left embrace broad principles that constrain the Stegner book on the couch in her his discretion in future cases. inner chambers, I went back to retrieve it. On the chair where the justice had During a recent visit to O'Connor's been sitting, I noticed a hand-stitched office, I found a bit more evidence of pillow, embroidered with the motto: her decisiveness. She declined to grant "Maybe in error but never in doubt." an interview for this article but kindly agreed to show me around her By her own account, the roots of chambers. At the front of the Supreme O'Connor's self-confidence came from Court Building, her airy inner office, her upbringing riding horses and roping

68 steers on the Lazy B cattle ranch, a 250- anybody to call and there wasn't anybody square-mile tract on the Arizona-New to take care of you. You very quickly Mexico border that is 35 miles from the learned that you're responsible for nearest town and 12 miles from the yourself." In deliberate Western cadences nearest neighbor. During the C-Span very similar to his sister's, Day expresses biography, O'Connor quoted Wallace moving, brotherly admiration for her Stegner's description of growing up in impressive example: "The essence of the West: "There is something about Sandra is that if you're around her very living in big empty space, where people much, the bar is raised in your life. You are few and distant, under a great sky just feel like doing better things and that is alternately serene and furious, being a better person." exposed to sun from 4 in the morning until 9 at night, and to a wind that never After attending school in El Paso, where seems to rest -- there is something about she lived during the school year with her exposure to that big country that not grandmother, O'Connor enrolled at only tells an individual how small he is, Stanford at 16 and then after graduating but steadily tells him who he is." attended Stanford Law School. At law O'Connor continued with a vivid school, she dated her classmate William recollection of driving around the ranch Rehnquist and met her future husband in a pickup truck with her father, waiting and fellow law-review editor, John for the rain that the grass and the cattle O'Connor. needed to survive. "Rain was our life's blood . . .the essential element, the most The story of her progress after law treasured event, prayed for, hoped for, school has been told often. Because of anticipated, savored when it came . . . her sex, she was unable to get a job in a celebrated and enjoyed -- every drop," law firm; instead, she became a deputy she recalled. "Joy, wonder, incredible gift county attorney in San Mateo, Calif., in from above." 1952. After spending several years in Germany, where John served in the O'Connor and her 61-year-old brother, Army, the couple Alan Day, moved to Arizona, have been writing a memoir where O'Connor set up a private practice about growing up on the ranch, which is in a shopping mall. After scheduled taking some for publication early next year. time off to have three sons, she returned "A lot of people have asked Sandra to full-time work when her through the youngest boy years how someone from a began school. She spent four years as an rural, humble, agricultural background assistant attorney general could have in Arizona, achieved what she's achieved, where she developed a reputation for and maybe this book is a long answer to attention to detail. In 1964, she served as that question," Day says. Day, who ran a precinct captain the family ranch for many for Barry Goldwater, years, says that who remained a close friend until his his sister's upbringing as a rancher made death. (A picture of both of them hangs her independent and self-reliant. "You in her chambers, inscribed, "Hi Sandy would be out on the ranch -- in a pickup or Love, Barry.") Appointed in 1969 to fill a on horseback, or whatever," he relates, vacancy as an Arizona state senator, she "when you would come upon a situation was elected on her own the that needed a response: a broken fence following year, and in 1973 she became majority or a windmill or a sick cow or a flat tire leader. or a broken fan belt. There wasn't

69 In the Arizona Senate, O'Connor was toyed with the idea of having one of less socially conservative than some of them fake an unwanted pregnancy and her Republican colleagues, not only break down while discussing it in the opposing aid to religious schools but also locker room after O'Connor's morning staking out a moderate position on aerobics class, so that the justice was abortion. In 1970, three years before Roe certain to overhear. But these theatrics was decided, O'Connor voted to repeal were unnecessary. in 1989, despite strong Arizona's draconian anti-abortion law, pressure from conservatives, O'Connor and the year after Roe came down, she refused to provide the fifth vote to voted against a petition asking Congress overturn Roe itself. And three years later to pass a human life amendment to the in Planned Parenthood v. Casey, a case Constitution. In her interview with involving a Pennsylvania anti-abortion President Reagan before he nominated law, she joined Souter and Kennedy in her to the court -- she was by then a upholding what they called the core judge on the Arizona Court of Appeals -- holding of Roe: namely, that states may O'Connor emphasized her personal not place serious restrictions on abortion opposition to abortion but did not before fetal viability. commit herself one way or the other on the subject of Roe. During her O'Connor's performance in Casey was confirmation hearings, her fiercest characteristically self-assured and opposition came from anti-abortion judicially aggressive. According to a conservatives who felt that her moderate former clerk involved with the decision, record on abortion in the Arizona she was most offended by the provisions Legislature meant that she could not be of the Pennsylvania law requiring wives counted on to overturn Roe. As it turned to notify their husbands before having out, O'Connor's conservative critics were an abortion. Having decided to strike right to worry. O'Connor staked out her that down, she was amenable to Souter's ambivalent position in the very first suggestion that they write an opinion abortion case she heard, in 1983, in that would preserve the core of Roe. She which she denounced Roe without and Souter then approached Kennedy, explicitly calling for it to be overturned. who agreed to adopt O'Connor's "undue Instead, she proposed her own test for burden" standard as the new test for evaluating restrictions on a woman evaluating all abortion restrictions. While seeking an abortion -- whether the Kennedy agonized endlessly about the restriction "unduly burdened" the right decision -- wavering until the final days to choose. By adopting the vague "undue before the opinion circulated and musing burden" language, O'Connor gave openly about writing a brief opinion that herself lots of discretion to decide, from would sidestep the question of whether case to case, whether or not she abortion is a fundamental right -- considered a particular abortion O'Connor made her decision and never restriction permissible. looked back. Using the same reasoning that she would turn to in Bush v. Gore, Between 1983 and 1992, O'Connor the majority opinion justified the upheld every abortion restriction she decision to short-circuit the political confronted. According to Lazarus's debate about abortion on the grounds "Closed Chambers," liberal clerks were that the court had to save the country so concerned that O'Connor would from legislative battles that could only overturn Roe that a few female clerks polarize and divide Americans.

70 Last summer, when it came time to for grazing," Alan Day says. "Sandra is evaluate the constitutionality of so-called very much a federalist, which is saying partial-birth abortion laws, O'Connor the states should be able to solve more provided a fifth vote for Stephen of their problems and the federal Breyer's expansive 5-4 decision striking government should stick their nose in as down 31 state laws that restrict late-term little as possible. I think that certainly abortions. Kennedy, by contrast, wrote comes from her heritage in the West." an angry dissent, suggesting that he had been duped in 1992 into supporting a But during the past few years, it has malleable legal standard that O'Connor become increasingly clear that the and the liberal justices were invoking to federalism revolution that O'Connor has strike down abortion restrictions far later led is not only about states' rights. It is in pregnancy than he had anticipated -- also about the growing determination of restrictions supported by George W. O'Connor and her conservative Bush, Al Gore and two-thirds of the colleagues to reserve for themselves the American people. exclusive authority to decide what counts as illegal and impermissible in America. O'Connor's conservatism is found less in Last year, for example, O'Connor and her views about social issues than in her the four conservative justices held that views about where political power rests. private individuals could not sue the She is adamantly anti-Washington. She is states for violating the federal age not alone, of course. In its view toward discrimination act. O'Connor did not federal power, the Rehnquist court is the think that age discrimination was a least deferential court in American national problem, even though Congress history. Seth Waxman, who served as thought otherwise when it passed the solicitor general in the Clinton Age Discrimination in Employment Act. administration, notes that in the first 200 years after the Constitution was ratified, Later that same year, O'Connor joined the Supreme Court struck down only the four conservatives in striking down 127 federal laws. In the past six years part of the Violence Against Women alone, the Rehnquist court has struck Act. They dismissed the voluminous down 28 federal laws. O'Connor joined evidence that had led Congress to all but six of these decisions. (The most conclude that the states were failing to restrained justices are Breyer and respond adequately to gender-motivated Ginsburg, who dissented in half the violence. In this and other cases, cases.) O'Connor's experience as a state legislator seems to have given her a Her attachment to states' rights seems to robust skepticism about the state and have stemmed from her upbringing on federal legislative process. "Somebody the Lazy B ranch, where her father was was making the case about a state an opponent of Franklin D. Roosevelt legislature, and the gist of her comment and the New Deal. Today, less than 15 was, I was in a state legislature -- I know percent of the land is privately owned in how foolishly they can act,"' a former Arizona, and federal land and water clerk remembers. regulations "Having been there, are a constant source of she understood that these frustration were not such to ranchers like her brother. wise deliberative bodies." "I got really discouraged with the way the federal government leases their land

71 Copyright 1 2001 The New York Tim Company

72 Refusing to Court Favor Youngest Justice Accepts Being "Thom in the Side of Those Who Villify Him"

The Atlanta Constitution

Tuesday, July 3, 2001

Ken Foskett

Part 3 of a series about Clarence Thomas order to raise their families, earn a running Sunday 7/1, Monday 7/ 2, living, and remain good citizens. . . . By Tuesday 7/3/2001. focusing exclusively on the imagined 'rights' of the two percent, the Court today has denied our most vulnerable JUSTICE THOMAS: IN HIS citizens the very thing that Justice (John WORDS Paul) Stevens elevates above all else --- the 'freedom of movement.' And that is a Clarence Thomas of Georgia has written shame." opinions on a wide variety of topics since taking his seat on the Supreme > Freedom of religion Court of the United States in 1991. Here are excerpts from some of his opinions: Rosenberger v. University of Virginia (1995) > Anti-gang, anti-loitering laws The university allowed its student Chicago v. Morales (1999) activities fund to pay printing costs for various student groups, but withheld In a 6-3 decision, the Supreme Court payment for a Christian group, saying its agreed with Illinois courts that Chicago's newspaper violated school prohibitions anti-gang ordinance violated due process against promoting a particular belief. and was an arbitrary restriction on Lower courts sided with the university, personal liberties. Thomas dissented. but the Supreme Court voted 5-4 to reverse their decision. Thomas "Today, the court focuses extensively on concurred. the 'rights' of gang members and their companions. It can safely do so --- the "This case provides an opportunity to people who will have to live with the reaffirm one basic principle that has consequences of today's opinion do not enjoyed an uncharacteristic degree of live in our neighborhoods. Rather, the consensus: The (Establishment) Clause people who will suffer from our lofty does not compel the exclusion of pronouncements are . . . people who religious groups from government have seen their neighborhoods literally benefits programs that are generally destroyed by gangs and violence and available to a broad class of participants drugs. They are good, decent people who . . I If the Establishment Clause is must struggle to overcome their offended when religious adherents desperate situation, against all odds, in

73 benefit from neutral programs such as government, saying it limited the the University of Virginia's Student political influence of black voters. They Activities Fund, it must also won at the appellate court level, but the be offended when they receive the same Supreme Court reversed the decision on benefits in the form of in-kind a 5-4 vote. Thomas concurred. subsidies." "The system we have instituted > Affirmative action affirmatively encourages a racially based understanding of the representative Adarand Constructors Inc. v. Pena function. The clear premise of the (1995) system is that geographic districts are merely a device to be manipulated to The Supreme Court ruled 6-3 for establish 'black representatives' whose Adarand Constructors Inc., which said real constituencies are defined, not in the federal practice of encouraging terms of the voters who populate their government contractors to hire districts, but in terms of race." subcontractors controlled by "disadvantaged individuals" --- and its > Cruel and unusual punishment use of race to identify them --- was unconstitutional. Thomas concurred. Hudson v. McMillian (1992)

"That these programs may have been The Supreme Court ruled 7-2 that motivated, in part, by good intentions excessive force against a prisoner may cannot provide refuge from the principle be considered cruel and unusual that under our Constitution, the punishment even though the inmate is government may not make distinctions not seriously injured. Thomas dissented. on the basis of race. As far as the Constitution is concerned, it is irrelevant "In my view, a use of force that causes whether a government's racial only insignificant harm to a prisoner classifications are drawn by those who may be immoral, it may be tortious, it wish to oppress a race or by those who may be criminal, and it may even be have a sincere desire to help those remediable under other provisions of the thought to be disadvantaged. There can Federal Constitution, but it is not 'cruel be no doubt that the paternalism that and unusual punishment.' In appears to lie at the heart of this program concluding to the contrary, the Court is at war with the principle of inherent today goes far beyond our precedents." equality that underlies and infuses our Constitution." > Free speech

> Voting rights McIntyre v. Ohio Elections Commission (1995) Holder v. Hall (1994) In 1989, Margaret McIntyre was fined In the mid-1980s, black voters in $100 for distributing unsigned political Bleckley County, Ga., challenged the leaflets against a school tax referendum county's single-commissioner the previous year. In a 7-2 decision, the

74 Supreme Court overturned the Ohio In a 5-4 decision, the Supreme Court courts. Thomas concurred. upheld lower court decisions declaring a term limits amendment in Arkansas "After reviewing the weight of the unconstitutional. The amendment limited historical evidence, it seems that the the state's members of the U.S. House to framers (of the U.S. Constitution) three terms and its U.S. senators to two understood the First Amendment to terms. Thomas dissented. protect an author's right to express his thoughts on political candidates or issues "Nothing in the Constitution deprives the in an anonymous fashion." people of each state of the power to prescribe eligibility requirements for the > Commerce clause candidates who seek to represent them in Congress. The Constitution is simply United States v. Lopez (1995) silent on this question. And where the Constitution is silent, it raises no bar to The Supreme Court voted 5-4 to strike action by the states or the people. ... down the Gun Free School Zones Act of Contrary to the majoritys suggestion, 1990, saying the law exceeded the the people of the States need not point to authority of Congress to "regulate any affirmative grant of power in the commerce ... among the several states." Constitution in order to prescribe The case involved a Texas 12th-grader qualifications for their representatives in who was arrested for carrying a Congress, or to authorize their elected concealed weapon to school. Thomas state legislators to do so." concurred. > School desegregation "It seems to me that the power to regulate 'commerce' can by no means Missouri v. Jenkins (1995) encompass authority over mere gun possession, any more than it In a long-running school desegregation empowers the federal government to case, a federal court ordered Missouri to regulate marriage, littering, or cruelty to give salary increases to animals, throughout virtually all the 50 states. Our instructional and non-instructional staff Constitution quite properly leaves such within the Kansas City School District matters to the individual states, and to continue to fund remedial "quality notwithstanding these activities' effects education" programs. The Supreme on interstate commerce. Any Court overturned a lower court in a 5-4 interpretation of the Commerce Clause decision. Thomas concurred. "It never that even suggests that Congress could ceases to amaze me that the courts regulate such are so matters is in need of re- willing to assume that examination." anything that is predominantly black must be inferior. Instead of focusing on > Federalism remedying the harm done to those black schoolchildren U.S. injured by segregation, the District Court Term Limits Inc. v. Thornton here sought (1995) to convert the Kansas City, Missouri, School District into a 'magnet district' that would reverse the 'white

75 flight' caused by de jure segregation.... Stevens...... 20% Two threads in our jurisprudence have produced this unfortunate situation.... First, the court has read our cases to THE WINNING TEAM support the theory that black students suffer an unspecified psychological harm Thomas was on the prevailing side in from segregation that retards their three of every four non- unanimous mental and educational development. decisions. Here's how often each justice This approach not only relies on was on the winning side in the 1999- questionable social science research 2000 term: rather than constitutional principle, but it also rests on an assumption of black O'Connor...... 92% inferiority. Second, we have permitted the federal courts to exercise virtually Rehnquist...... 84% unlimited equitable powers to remedy this alleged constitutional violation. The Kennedy...... 80% exercise of this authority has trampled upon principles of federalism and the Thomas...... 76% separation of powers." Scalia...... 70% On the Web: The full text of the opinions by Thomas and other members Breyer...... 66% of the Supreme Court are available at Cornell University's Legal Information Souter...... 60% Institute Web site at: http://supct.law.comell.edu/supct/ / Ginsburg...... 54%

In the court's last full term (1999-2000), Stevens...... 46% here's how often Clarence Thomas --- in non-unanimous decisions --- agreed with WRITING OPINIONS each of these justices: Thomas writes an average of 21 court Scalia...... 82% opinions a year, which is in line with the number of opinions written by most of Rehnquist...... 64% the justices.

Kennedy...... 62% Stevens...... 36.3

O'Connor...... 58% Scalia...... 30.8

Souter...... 30% O'Connor...... 23.2

Ginsburg...... 26% Breyer...... 22.3

Breyer...... 24% Thomas...... 21

76 Ginsburg ...... 20.3 The brief stab at humor was the second time in 30 minutes that Thomas Kennedy...... 20.1 confronted a perception that has dogged him for 10 years: Justice Antonin Scalia, Souter...... 20.1 a white man of Italian descent, is the puppeteer who guides his votes and Rehnquist.....17.2 crafts his judicial opinions.

Average...... 24.6 "Because I am black, it is said that Justice Scalia has to do my work for DISSENTS me," Thomas said earlier. "He must somehow have a chip in my brain and Only John Paul Stevens has cast more controls me that way." dissenting votes since Thomas joined the court in 1991. But several justices have In fact, Thomas has authored dozens of cast more dissents in recent years. provocative opinions and dissents --- none that rank as landmark legal cases -- Stevens...... 30.4 - but brick by brick he is building a judicial legacy that could affect the Thomas...... 18.1 nation for decades to come.

Breyer...... 17.8 Thomas has spent his entire public life seeking to distinguish himself as an Scalia...... 17.4 independent thinker who transcends skin color. But not even the white marble Ginsburg...... 17 walls of the Supreme Court, hewn from the hills of his native Georgia, have Souter...... 14.7 insulated him from racial stereotyping.

Rehnquist.....14 Thomas' race played a powerful role in shaping his political beliefs, and it O'Connor...... 12 continues to shape his judicial philosophy. Of the nearly 1,000 cases Kennedy...... 8.5 that he has voted on, decisions dealing with affirmative action, school Source: Harvard Law Review desegregation and voting rights have won the most attention. Last September, as Clarence Thomas fielded questions at the University of Thomas' mere presence on the Supreme Louisville, a student wanted to know: Court has emboldened black Does the Supreme Court justice write all conservatives around the country. But his own opinions? his race and political views continue to make him a lightning rod for criticism. Thomas' deadpan rejoinder jolted the audience: "No, Justice Scalia does." The "I don't see an overwhelming amount of students laughed nervously. compassion for people less well off in

77 our society," American University law At his core, Thomas believes professor Stephen Wermiel said. "I see passionately that God created the races somebody who seems to care more equally, and he loathes laws and deeply about the text of the Constitution programs that, however subtly, assume and the process of reading it than its otherwise. Thomas rejects government beneficiaries." paternalism in any form.

Thomas is an integral part of the He believes in rules --- the fewer the conservative faction that has steered the better, and the same ones for everybody, court back from the perceived excesses no matter what their skin color. As he of the Warren and Burger courts. told students in Louisville, Ky., he grew up under a system with two sets of But, perhaps because he has spent less books: one for whites and one for blacks. time as a judge, Thomas is more willing "I'm not going back to two sets of than his colleagues to overturn well- books," he said firmly. established precedents, according to Scott Gerber, an Ohio Northern "I don't need people to agree with me," University law professor who wrote he added a few moments later. "I'm very "First Principles: The Jurisprudence of comfortable being alone in my views." Clarence Thomas." Turning right from left "He's more bold and adventurous," said Gerber. Thomas' evolution into a conservative Republican was remarkably quick. Thomas anchors his judicial thinking in When he left Savannah in 1968 to attend the promise of equality spelled out in the Holy Cross College in Massachusetts, Declaration of Independence and the Thomas by his own admission was an notion of ordered liberty embodied in the angry and confused young man. Constitution. But echoes of Thomas' experiences with segregation and Assassins had killed the Rev. Martin affirmative action ring throughout his Luther King Jr. and Robert F. Kennedy legal writings. that year. Blacks across America were protesting and rioting over the lingering A beneficiary of affirmative action, injustices of racism and inequality. Thomas nonetheless concluded that affirmative action stigmatizes blacks in Thomas, one of only 25 blacks at Holy ways that are ultimately destructive. Cross, helped start the Black Student Union. He grew an Afro. He wore As both black and conservative, he grew military fatigues and combat boots. to detest the expectation that, because of Thomas distributed the Black Panthers' his skin color, he should be liberal. That literature and helped with their breakfast mind-set drives his decisions on voting program for the poor. Later, he rights and redistricting cases affecting characterized his politics at the time as racial minorities. "radical left."

78 But Thomas developed second thoughts Years later, Thomas expressed his toward the end of his three years at Holy concerns about affirmative action to Cross. He told Patrick O'Daniel, a Allen Moore, Missouri Sen. John former clerk, that a turning point came Danforth's legislative director in when he went to the Panthers' Washington. headquarters and found crates of rotting "He said, 'Imagine how it feels if you are eggs intended for the breakfast program. a black who feels you deserve to be there, you carried your load --- maybe The Panthers were just a front, not really more than your load --- and then you interested in helping black people, he leave with a . . . degree that the world concluded. then discounts."

"He became very disillusioned by that," At Yale, Thomas chose a different career O'Daniel said. track than other black law students. Rather than civil rights, he focused on Another defining moment, Thomas said business and tax law, some of the most in one speech, came in 1970 when he arcane and difficult courses at Yale. participated in a student protest to "free the political prisoners." He thought he could earn more money in business law. But when the big law firms "Why was I doing this rather than using interviewed him, Thomas said later, they my intellect?" Thomas asked members seemed mostly interested in him because of the National Bar Association, a he was black. mostly black legal group. "It was intoxicating to act upon one's rage, to "Prospective employers dismissed our wear it on one's shoulder, to be defined grades and diplomas, by it. assuming we got Yet, ultimately, it was destructive." both primarily because of preferential treatment," Thomas told biographer In fact, Thomas' radicalism, much like Norman L. Macht. his short-lived Afro, never suited him. Thomas' new activism ran counter to the Thomas later told his friend Chris discipline and order instilled years Brewster, a Washington lawyer, about a earlier by his grandfather, and his leftist black friend who had been hired by a big politics alienated the two men. law firm. At Holy Cross, Thomas also developed "It was some fancy-schmancy deep reservations about affirmative building with glass walls, and they put him in an action, feeling that people assumed office where he was very prominent, because he was black that he was not where you could see him," said qualified to be there, he told others later. Brewster. The lesson for Thomas was The self- consciousness intensified when simple: "Idon't want to be that Thomas was admitted under Yale's guy." affirmative action program as one of 12 Danforth, as attorney blacks in a class of 165. general of Missouri, initially hired Thomas in 1974 because he was looking for qualified minorities to work for him. When

79 Thomas took the job, he made one request: He would not work on civil Eager to advance black Republicans in rights cases. the judiciary, Bush named Thomas to the D.C. Circuit in 1989, and followed up "He wanted to be competing with people with a nomination to the Supreme Court and dealing with people on a whole on July 1, 1991, 16 months after he was range of issues," said Danforth. confirmed to the D.C. Circuit.

A crucial step Battle-scarred and weary

Escaping racial stereotyping, however, When he arrived on the court in October proved difficult in Washington, where 1991, Thomas was a physical and there were few black Republicans. So emotional wreck after a 107-day when the Reagan administration cast confirmation battle. Thomas felt about for a conservative to oversee civil constantly fatigued, and he told his law rights at the Department of Education, clerks that he couldn't stay focused. At Thomas seemed the perfect fit. the end of his first term, Thomas collapsed with exhaustion and was sick Only Thomas didn't want the job. "He for two months. came to me and said, 'I have resisted all of my life going into the track of the But the Supreme Court was the perfect black, to work on civil rights place for Thomas. The insulation and discrimination,' " recalled Moore. "That seclusion of the court gave him time to was the 'marginalize-them track.' " recuperate from his confirmation ordeal. Thomas' worst fear --- that his new Thomas took the Reagan administration colleagues would shun him --- never job anyway, against his principles, materialized. His colleagues embraced because it gave him more responsibility him, an act of kindness that Thomas and more money. But it proved a crucial never fails to mention. step in his path to the Supreme Court. Less than a year later, he was named Ten years later, Thomas speaks with a chairman of the Equal Employment reverence for the court that suggests Opportunity Commission, where chance there is no other place he'd rather be. connections again played a decisive role in his career. From the beginning, Thomas was different from the other justices. He was Thomas' vice chairwoman at the EEOC only 43, barely half the age of some of was marned to Laurence Silberman, a his colleagues. He was less formal than judge on the U.S. Court of Appeals for they were, and he took time to chat with the District of Columbia Circuit and a all the court employees, from cafeteria veteran of three Republican workers to police officers. administrations. He prevailed on court administrators to Silberman recommended Thomas years update the exercise equipment so he later to the Bush administration for could keep up his regular workout. He consideration as a judge. played basketball with employees at the

80 court's private gym, dubbed "the Bar Association of bias in its evaluation federal highest court in the land." of presidential appointees to the bench. In March, the Bush Thomas' youth subtly affected the court administration stopped giving the ABA in other ways. More savvy about advance notice of appointments for their technology than the other justices, review. Thomas pushed the court to update its computer infrastructure, get wired to the Some of his arguments ring hollow. Internet, and develop secure systems so justices could access records from their Thomas has complained about the home computers. treatment he received during his confirmation. Yet when Republicans He took an interest in administration and attacked President Clinton's judicial was made a member of the Supreme nominees for judicial activism, Thomas Court's budget committee, appearing defended their right to do so. before Congress every year for the past few years to explain the court's budget "Judges simply do not need protection needs. from the slings and arrows of mere words," Thomas said in a 1999 speech. Outspoken and political in both the "We are not that fragile." legislative and executive branches of government, Thomas hasn't tempered his The science of law political activism in the judicial branch, and this frankness has made him a In his 10 years on the court, Thomas has conservative icon. In February, at an developed a highly methodical and American Enterprise Institute dinner disciplined approach to deciding cases. honoring Thomas, a long line of GOP Thomas believes the law is a science, luminaries lined up to shake his hand, and that standardized procedures will including former independent counsel invariably lead to the correct outcome. Kenneth Starr, noted Clinton antagonist Barbara Olsen and former GOP vice The work habits he learned from his presidential nominee Jack Kemp. grandfather have stayed with him. He comes to work early, often before 6 a.m. He has spoken at most of the nation's He spends hours reading and studying major conservative organizations and the briefs --- often at home in the middle think tanks, including the Federalist of the night. He says he's always Society, the Hudson Institute and Phyllis thinking about cases, even while Schlafly's Eagle Forum. He has chosen mowing the lawn. some of these venues to deliver pointed remarks. In 1999, he charged that special Justice Anthony Kennedy, who sits next interest groups, which played a huge role to Thomas on the bench, said recently he in his own nomination battle, have frequently relies on Thomas during oral corrupted the judicial confirmation arguments to tell him where he can find process. certain facts in the case briefs. Thomas' memory for details, he said, is Two years ago, he accused the American "photographic."

81 "Ideas are open for attack, but the people Thomas' opinions are not flowery or never are," said Coleman. "He would given to esoteric wanderings. He writes never permit a draft to come to his desk simply and plainly, seeking to make that had a disparaging remark about every opinion understood to both another justice." lawyers and "gas station attendants," as he said recently. The quiet man

Before every oral argument, Thomas sits On a recent April morning, the Supreme down with his four clerks to discuss the Court sat for oral arguments. Thomas cases on the docket. Sometimes, these listened to the lawyers, shared private sessions last four or five hours and words with Justice Stephen Breyer, who become quite animated. sits on his left, and stared at the ceiling, reclining so steeply in his black, "His main instruction to us was that he leather chair that it seemed he might tip didn't want to hear an issue or a question over. in oral argument that he had not already heard about or thought about himself," All eight of his colleagues asked said Greg Coleman, who worked for questions during the two one- hour Thomas in 1995 and 1996. sessions, even though the cases were routine. Thomas did not. Thomas' clerks play a central role in his preparations. He hires only those who It's not true that Thomas never asks have clerked in the federal court system, questions during oral arguments, as is and only those who finished in the top commonly believed, but he rarely does. 10 percent of their law school class. Thomas' silence is one of the few things Thomas also chooses clerks who mirror people seem to know about him. Even his own conservative views and his colleagues in the federal judiciary outspokenness. find it curious; a federal judge from Augusta asked him point blank about his "He wants free thinkers," said John Yoo, reticence at a judicial conference in who clerked for Thomas in 1994 and Savannah this May. 1995. "He wants people to speak up with views that may be wacky or that haven't Thomas has offered various explanations been argued for 100 years, but he wants for his quietness. He has said he believes to hear the whole range of views." oral arguments are meant for the lawyers arguing their cases. He's said that most At the beginning of each term, Thomas questions get asked anyway, so there gives his clerks two guidelines: They are is no need for him to ask one. He has never to bargain points of law to secure suggested that his colleagues ask too the votes of other justices, and they are many questions, and that some are just never to write opinions that criticize for show. another justice. In some of these explanations, Thomas has suggested that his mind is already

82 made up, implying that oral arguments between church and state. Several are more of a formality. majority opinions by Thomas have established that government aid may "Remember, you've already read the flow to religious groups provided it is briefs," Thomas said in Savannah. "So equally available to other groups, a you have an idea where you are going to shift from earlier rulings that tended to come out." subject religious organizations to a different standard. He's also cited more personal reasons, such as his struggles to learn standard Thomas' concurring opinion in a 1995 English as a child after growing up case, Rosenberger v. University of around coastal black dialects. Virginia, argued that government aid may flow to religious groups provided Several of Thomas' friends have urged the government is neutral in how it him to ask more questions so people distributes the money. The opinion has don't infer he's less knowledgeable than become the legal foundation for the his colleagues. But Thomas refuses. school voucher movement, according to Pepperdine University School of Law "His feeling is, what does he care?" said professor Douglas Kmiec. Kansas University law professor Steve McAllister, one of Thomas' first clerks. Justices are assigned majority opinions by the senior judge in the majority, often A true originalist Rehnquist. Thomas has assiduously worked around this limitation by writing After 10 years on the court, some concurring opinions that speak only analysts for regard Thomas as the most himself. Thomas uses some of these conservative justice. opinions to throw down markers that go far beyond what even his conservative In legal terms, Thomas is an originalist, colleagues might consider. meaning he believes in deciding cases based on the original meaning of the A 1995 concurrence by Thomas, now Constitution. He views the Constitution required reading in some law school as a contract that was entered into by the courses, suggested the court should framers, and he sees his role as enforcing overturn six decades of interstate the original terms of the bargain. commerce law. Thomas' position, if ultimately adopted, would drastically He's established himself as an ardent limit the power of the federal supporter of states' rights and he's deeply government to regulate issues such as hostile to what he perceives as the gun ownership and working conditions. encroaching power of the federal government. Thomas, a target of women's groups during his confirmation, has not More recently, Chief Justice William written much on women's rights. He has voted Rehnquist appears to be giving Thomas to overturn Roe v. Wade guaranteeing the lead in articulating the court's more a woman's constitutional right tolerant position on the separation to an abortion, taking the conservative view

83 that the right to privacy articulated in black voters in Bleckley County, argued Roe does not exist in the Constitution. that the county's system of electing a single county commissioner He has sided with victims of sexual discriminated against racial minorities. harassment in cases where the court is They argued instead for a five-member unanimous. But on closely divided board that would allow blacks to elect a rulings, Thomas tends to side with black representative from majority-black fellow conservatives and take a more districts. restrictive view of when harassment claims can be brought and how victims Thomas evoked the language of South should be compensated. African apartheid in his opinion, concurring with the court majority, Some of his votes break the conservative which rejected the plaintiffs claims. stereotype. He has been one of the most liberal justices on the First Amendment, "We have involved the federal courts, a fact often overlooked by his critics. and indeed the Nation, in the enterprise One study found that only Justice of systematically dividing the country Kennedy took a stronger stance on free into electoral districts along racial lines - speech rights, although some of these -- an enterprise of segregating the races votes reflect the view that campaign into political homelands," Thomas contributions are a form of speech and wrote. cannot be regulated. "Our drive to segregate political districts Thomas' biggest legacy on the court, by race can only serve to deepen racial however, has been his insistence on a divisions by destroying any need for "colorblind" reading of the Constitution voters or candidates to build bridges in matters of race, taking particular aim between racial groups," he continued. at affirmative action and preferential treatment of minorities, according to The following year, Thomas drew a Gerber, his judicial biographer. broadside from the civil rights community when he voted to strike Over the years, Thomas has voted with down an affirmative-action contracting the court's majority, holding that race program in Denver. The ruling forced cannot be used as the predominant factor governments across the country to in drawing political districts. drastically scale back set-aside programs for minorities. In several key decisions, Thomas has also been sharply critical of the 1965 "So called 'benign' discrimination Voting Rights Act, which Congress teaches many that because of chronic enacted to stop mostly Southern states and apparently immutable handicaps, from throwing up barriers to black voter minorities cannot compete with them registration and voting. without their patronizing indulgence," Thomas wrote in Adarand Constructors Thomas employed some of his harshest Inc. v. Pena. criticism of the Voting Rights Act in a 1994 Georgia case. The suit, brought by

84 Thomas has even taken on some of the Over the years, Thomas has sent legal reasoning behind Brown v. Board contradictory signals in how he reacts to of Education (1954), the landmark civil his detractors. rights case that ended segregation in public schools. He affects indifference, yet he can't seem to stop talking back to them. Some of the In a Missouri case, in which black more pointed criticisms appear to goad parents challenged lingering inequalities him into more open defiance. in Kansas City's school system, Thomas scolded those who wrote the Brown Just this year, Thomas complained again decision for relying, in part, on the idea about the interpretation of his 1992 that segregated schools led blacks to feel dissent involving an Alabama prisoner inferior. who had been beaten by prison guards. Seven of Thomas' colleagues said the "Segregation was not unconstitutional prisoner was entitled to a claim of cruel because it might have caused and unusual punishment. psychological feelings of inferiority," Thomas wrote. Thomas argued that the Eighth Amendment was intended to cover cruel And then, in language harkening back to and unusual punishment in sentencing, his own experience in segregated, not whatever prison conditions might Catholic schools, Thomas said: "Given arise later, which led The New York that desegregation has not produced the Times to label him the "youngest, predicted leaps forward in black cruelest justice." educational achievement, there is no reason to think that black students "I was widely denounced for advocating cannot learn as well when surrounded by the beating of prisoners, which is members of their own race as when ridiculous," Thomas said in February. they are in an integrated environment." "The critics weren't content to argue that I was analytically wrong --- that I had In 1998, a college student in New York misinterpreted the law in making my asked Thomas to rate his impact on the decision --- rather they sought my court so far. "Not much," was the reply, conformity, or, in the alternative, my according to Alfred University professor silence." Robert Heineman. Thomas has also sought out But Heineman also recalled a caveat: opportunities to answer his critics. In "He said, 'I'm a young guy. 1998, he accepted an invitation to speak I'm going to be on the court another two to the National Bar Association, decades or so. I think by the time I leave, representing most of the nation's black I'll have some impact.'" lawyers and judges.

Contradictory signals "It pains me deeply --- more deeply than any of you can imagine -- - to be perceived by so many members of my race as doing them harm," Thomas said.

85 Yet these sentiments tend to mask how "I come here today not in anger or to much Thomas relishes being the anger," he said. "Nor have I come to contrarian --- the man who says no when defend my views, but rather to assert my everyone else says yes. right to think for myself, to refuse to have my ideas assigned to me as though In May, Thomas came home to I was an intellectual slave because I'm Savannah to address members of the black. local bar association. Surrounded by old friends and family, he reflected on his "I come to state that I am a man, free to early dreams of returning to Savannah to think for myself and do as I please. I've practice law. come to assert that I am a judge, and I will not be consigned to the "Idon't know whether or not I would be unquestioned opinions of others. But any more popular if I had come home," even more than that I have come to say said Thomas, chuckling. "I think there is that, isn't it time to move on? Isn't it time a certain pleasure you get from being a to realize that being angry with me thorn in the side of people." solves no problems?" Copyright C 2001 The Atlanta Journal and Constitution.

86 Divided They Stand; The High Court and the Triumph of Discord

The New York Times

Sunday, July 15, 2001

Linda Greenhouse

TWO federal courthouses here provided memory. By the time the term ended, the scenes of stark contrast on the last announcement of a split decision had Thursday in June. At the Supreme Court, become routine, a familiar reminder of the justices concluded their term by how much the next appointment to the announcing decisions in four cases, all by court will matter. That appointment, when votes of 5 to 4, while almost it comes, could change the court's, and simultaneously, less than a mile down hence the nation's, course on nearly every Constitution Avenue, the United States important constitutional question Court of Appeals for the District of currently in debate. Columbia Circuit announced its unanimous decision in the Microsoft case. But familiarity should not obscure the fact that such a deeply divided Supreme Court There was nothing predictable about the is not, historically, at all routine. Whlile the unanimity of the complex 125-page culture of dissent that now prevails is not Microsoft decision. The seven judges who a Rehnquist Court invention, it is a sat on the case have very different views surprisingly recent development that of the law in general, and of antitrust law illuminates not only this court's approach in particular. But Chief Judge Harry T. to its work but also the modem Supreme Edwards placed a high priority on the Court's changing relationship to the court speaking with one voice, and by all country and to the concept of law itself. accounts worked energetically to accomplish that goal. Not so long ago, it was considered ethically dubious for a judge of a high On the other hand, at the Supreme Court court even to cast a dissenting vote. "It is last term, "5 to 4" became a judicial way of high importance that judges of life. From the presidential election -- constituting a court of last resort should destined to be among the most use effort and self-restraint to promote conspicuous and contentious decisions in solidarity of conclusion" ran a rule that American history -- to workplace from 1924 until 1972 was part of the arbitration to tobacco advertising to the American Bar Association's code of ownership of the land under an Idaho judicial conduct. Known as Canon 19, it lake, the justices were deeply, irrevocably warned judges not to "yield to pride of divided. opinion" and provided that "except in cases of conscientious difference of One-third of the term's 79 cases were opinion on fundamental principle, decided by 5-to-4 votes -- often but not dissenting opinions should be always the same 5 and the same 4 -- a discouraged." higher proportion than any time in

87 CANON 19 reflected the spirit of the Scalia, who cast 19 dissenting votes in the times when the bar association adopted it. last term, wrote in a 1994 article: During the 1920's, the Supreme Court "Dissents are simply the normal course of under the leadership of Chief Justice -- things. Indeed, if one's opinions were and former President -- William Howard never dissented from, he would begin to Taft decided more than 80 percent of all suspect that his colleagues considered him its cases unanimously. Most dissents "are insipid, or simply not worthy of a form of egotism," the chief justice wrote contradiction." in a letter to Justice Willis Van Devanter, adding: "They don't do any good, and What accounted for the change? Professor only weaken the prestige of the court. It is Post argues that the court's own role in much more important what the court the legal system changed in 1925, when it thinks than what any one thinks." gained from Congress the discretion to pick and choose its own cases. The The quotation from Justice Van Supreme Court was no longer the court of Devanter's unpublished papers is in an last resort for private disputes; the justices article by Robert C. Post, a law professor could turn down those cases to at the University of California at Berkeley, concentrate on legal issues with broad published in the May issue of the national implications. Minnesota Law Review. The article examines what Professor Post calls the WITH the grant of Supreme Court review "norm of acquiescence" of the Taft era a scarce resource -- today the court and traces its subsequent demise. decides only about 1 percent of the cases brought to it -- the stakes for each Dissent existed in ample measure on the carefully chosen case grew higher. The court of the 1920's, Professor Post justices were not simply resolving demonstrates through internal court particular disputes but superintending the documents, but the justices suppressed its development of the legal system as a public expression for what they saw as the whole. This new focus in turn bolstered institution's collective good. By the concept of law as an evolutionary maintaining a united front, the justices process rather than a static set of rules to sought to avoid giving ammunition to the be applied to particular facts and, court's political enemies, who could be according to Professor Post, made it less expected to seize on a divided opinion as likely for justices to acquiesce in decisions evidence that the court was making policy with which they did not agree. rather than discovering the one true answer to a legal question. According to David M. O'Brien, a professor of government at the University But the norm of acquiescence did not last, of Virginia and the author of several and by the 1940's Justice William 0. books on the Supreme Court, the major Douglas declared in an article, "It is the turning point came with the approach that democratic way to express dissident President Franklin D. Roosevelt's views." Only fascist and Communist appointees brought to the court. systems insist on "certainty and unanimity in the law," he said. "The battle over the New Deal taught that judges make law," he said. "If judges The culture of dissent was well makes law, they'd better rationalize it" by entrenched by the time Justice Antonin explaining themselves fully, separately if

88 necessary. 5-to-4 decision that became so ingrained in the law that a much more conservative From that perspective, the court's court reaffirmed it last year 7 to 2. performance in the last term represented the playing out of a powerful historical And the notion that justices should bite trend. But it was something else as well. their tongues for the collective good is There is a revolution in progress at the probably no more realistic for them than court, with Chief Justice William H for anyone else in a self-absorbed, Rehnquist and Justices Scalia, Sandra Day celebrity-obsessed society. O'Connor, Anthony t Kennedy and Clarence Thomas challenging long-settled Justices are remembered not for their doctrines governing state-federal relations, silent votes but for what they write, the separation of powers, property rights Professor O'Brien said. "It's the me- and religion. decade, the culture of the individual voice," he said. We look at the Supreme These five justices are "interested in Court, in all its jagged and vocal discord, making as much law as they can, sooner and see ourselves. rather than later," said Richard J. Lazarus, a professor at the Georgetown University Copyright D 2001 The New York Tints Law Center and director of its Supreme Company Court Institute. "They are trying to move the law," he said, and are "out there looking for cases" rather than for allies among the other four justices.

DOES it matter for the stability of the law or the authority of the court to have so many cases resolved by such close votes? There is not much evidence that it does. The concern that animated the earlier justices -- that divided decisions might call into question the legitimacy of judicial review itself -- now seems quaint. The country's thinking about the court has long since incorporated the understanding that, as Professor Post put it in an interview, "the court is speaking not from outside the system, but from inside, as a player."

In any event, there seems to be not much correlation between the vote in a case and its public reception. Many people probably assume that the vote in Roe v. Wade, one of the most disputed of modern Supreme Court decisions, was 5 to 4; it was 7 to 2. Miranda v. Arizona, a 1966 product of the Warren Court, was a

89 The Future of the Establishment Clause

Human Rights

Vol. 28, no. 2 (Spring 2001)

Erwin Chemerinsky

President George W. Bush's nominations for the Court to sanction prayer in public to the Supreme Court are likely to change schools. dramatically the law of the Establishment Clause. Conservatives on the Supreme This article describes the likely impact of Court such as Justices Antonin Scalia and Bush's appointments to the Court on the Clarence Thomas have repeatedly urged Establishment Clause of the First overruling precedents limiting aid to Amendment. The first section discusses parochial schools and prohibiting school the test used in Establishment Clause prayer. (Se, eg, Lamb's Chapel v. Center cases and its likelihood of being overruled Moriches Union Free School District, 508 by a Bush Supreme Court. The second U.S. 384, 398-99 (1993).) Currently, as section focuses on aid to religion and the evidenced by the Court's June 2000 dramatic impact that even one decision in Mitdl v Hdrr (120 S. Ct. appointment could have on the outcome 2530) (2000)), there are four Justices- of key issues such as vouchers and Chief Justice Rehnquist and Justices charitable choice. The final section Scalia, Kennedy, and Thomas- who examines school prayer, suggesting that desire a radical change in the law of the more than one replacement among Establishment Clause. Thus, even one Justices Stevens, O'Connor, Souter, appointment to the Court could bring Ginsburg, and Breyer would be necessary about this shift. to change the law in this area. Because there is some chance that both Stevens, There is every reason to believe that a the eldest on the current Court, and Bush nominee would provide the needed O'Connor might retire in the next four fifth vote for a dramatic change in years, this also is quite possible. (Chief Establishment Clause jurisprudence. Justice William Rehnquist is rumored to During his candidacy, Bush explicitly be likely to retire during the next four stated he wanted to appoint justices like years, but even if President Bush Scalia and Thomas. More importantly, appointed an individual with a similar Bush clearly cares deeply about allowing conservative philosophy, it would not more government aid to religion. In one alter the outcome in Establishment Clause of his first acts as president, he created an cases.) office for faith-based programs in the White House to facilitate granting The Establishment Clause Test government money to religious groups for social services. Bush strongly favors When the Supreme Court first considered expansion of such programs and also the issue of aid to religion in 1947, it endorses school vouchers and tax credits echoed the words of Thomas Jefferson in that can be used for parochial schools. declaring that "[tlhe First Amendment has Additionally, Bush has expressed a desire erected a wall between church and state.

90 That wall must be kept high and v. Center Moriches Union Free School impregnable." (Everson v. Board of Edu- District, 508 U.S. 384, 399 (1993); Lee v. cation, 330 U.S. 1, 18 (1947).) For several Weisman, 505 U.S. 577, 644 (1992).) decades after this, a majority of the Court Indeed, Justice Scalia, the primary advo- unquestionably was committed to strict cate of overruling the Lenn test, color- separation of religion and government. fully lamented its survival and analogized (Ira C Lupu, The L iqng Death of it to Separationisri 62 GEO. WAsH. L. REv. 230 (1994).) The Court thus developed a ghoul in a late-night horror Establishment Clause doctrines that limit- movie that repeatedly sits up ed religion in government, such as for- in its grave and shuffles being bidding abroad, after prayer in public schools (Se eg, repeatedly killed and buried. Abbington School Dist. v. Schempp, 374 [It] is there to scare us U.S. 203 (1963); Engle v. Vitale, 370 U.S. [when] we wish it to do so, 421 (1962)) and government presence in but we can command it to religion, such as limiting aid to parochial return to the tomb at will. schools. (Se eg., Lemon v. Kurtzman, When we wish to strike 403 U.S. 602 (1971).) down a practice it forbids, we invoke it, when we wish Bush clearly cares deeply to uphold a practice it about allowing more forbids, we ignore it entirely. government aid to religion. (Lamb's Chapel, 508 U.S., at 398-99 (1993).) For the past thirty years, the Court has followed a test in Establishment Clause Four justices have indicated that they cases that was announced in Lenin u want to overrule the Lenan test- Rehn- Kunzrn (Id) In Lenv the Court quist, Scalia, Kennedy, and Thomas. (Se declared: "First, the statute must have a eg, Allegheny County v. Greater secular legislative purpose; second, its Pittsburgh ACLU, 492 U.S. 573, 660-74 principal or primary effect must be one (1989).) They have expressed a desire for a that neither advances nor inhibits religion; new test that allows much more gov- finally, the statute must not foster an emnment aid to religion and much more of excessive government entanglement with a religious presence in government. They religion." (Id at 612.) A law is call for an "accommodationist" approach unconstitutional if it fails any prong of the in which the government would violate Lena test. the Establishment Clause only if it literally created a church, favored one religion Although there have been many cases in over others, or coerced religious which the Court decided Establishment participation. Very little would violate the Establishment Clause under this Clause cases without applying this test approach, which would emphasize judicial (See eg, Board of Education of Kiryas deference to the government in its choices v. Grumet, 114 S. Joel Village School Dist. concerning religion. Replacing Ct. 2481 (1994); Lynch v. Donnelly, 465 any of the other five justices could result in this Marsh v. Chambers, 463 U.S. 668 (1984); dramatic change to the law. U.S. 783 (1983)), it has been used frequently. Several justices have criticized the test and called for its overrule, but this Aid to Religious Institutions has not occurred. (Sae eg, Lamb's Chapel

91 In Mitchell v. Helms (120 S. Ct. 2530 equipment to religious schools. In earlier (2000)), four justices called for altering the cases, the Court had ruled that the Establishment Clause to allow much more government cannot give instructional aid to parochial schools. In an opinion equipment to parochial institutions if the joined by Chief Justice Rehnquist and equipment could be used for religious Justices Scalia and Kennedy, Justice instruction. (See, e.g., Wolman v. Walter, Thomas argued that the clause is violated 433 U.S. 229 (1977); Meek v. Pittinger, by aid to religion only if the government 421 U.S. 349 (1975).) In Mitchel4 six favors some religions over others. This justices rejected this limitation, though radical change in interpretation would they did not agree on an alternative test. allow unprecedented aid to religious schools. The only limitation would be that Never before has a justice the government could not discriminate suggested, let alone a plurality among religions. endorsed, such a radical change in the law of the Establishment Clause, Justice Thomas, though, went even further and suggested that precluding Justice Thomas's plurality opinion, joined parochial schools from receiving aid is by Rehnquist, Scalia, and Kennedy, could impermissible: not be clearer in its call to allow aid to parochial schools so long as the [T]he inquiry into the government is evenhanded among recipient's religious views religions. Justice Thomas wrote: "In short, required by a focus on nothing in the Establishment Clause whether a school is requires the exclusion of pervasively pervasively sectarian is not sectarian schools from otherwise only unnecessary but also permissible aid programs, and other offensive. It is well doctrines of established, in numerous this Court bar it. This other contexts, that courts doctrine, born of bigotry, should be should refrain from trolling buried now." (Id at 2552.) through a person's or institution's religious beliefs . The majority rejected this approach and . . [H]ostility to aid to explicitly recognized that it would be a pervasively sectarian schools: radical and unprecedented shift in the law has a shameful pedigree that of the Establishment Clause. Justice we do not hesitate to O'Connor, in an opinion concurring in disavow." (Id. at 2551.) the judgment, observed, "[W]e have never held that a government-aid program Following this approach would mean passes constitutional muster solely that denying religious schools funding because of the neutral criteria it employs that is available to other schools, as has as a basis for distributing aid." (Id. at always been the law, violates the 2557.) Similarly, Justice Souter in dissent Constitution. wrote, "The insufficiency of evenhanded neutrality as a stand-alone criterion of constitutional intent or effect has been The issue in Mitche/1 is whether the clear from the beginning of our interpre- government violated the Establishment tative efforts." (Id at 2581.) Clause by providing instructional

92 Never has a majority of the Supreme massive government aid to religious Court held that neutrality is the sole test institutions. Never before has a justice for government aid to religions, as justice suggested, let alone a plurality endorsed, Thomas argued for in MitddL Sub an such a radical change in the law of the approach would profoundly change the Establishment Clause. law because the clause no longer would be a barrier to government aid to religion or In the near future, the Supreme Court will religious presence in government. For at likely face major issues concerning aid to least a half-century, the Court regarded religion, including the constitutionality of the Establishment Clause as an affirmative school voucher programs and charitable limit on what the government may do, choice programs that allow faith-based even if it is acting neutrally among groups to receive government money to religions. Justice Thomas would reject that provide social services. Based on Mithdl entirely. u Helns, it is clear that four justices- Rehnquist, Scalia, Kennedy, and Even more significantly, justice Thomas's Thomas- are willing to allow such aid so approach indicates that the government long as it does not discriminate among rast fund parochial school education to religious. President Bush's addition of one the extent that it provides aid to private more justice who shares this philosophy secular schools. This clearly implies that would ensure that these and other exc!uding religion is not neutral and programs aiding religion would be constitutes impermissible discrimination pernitted. under the clause. Prayer in Schools Justice Thomas argued that it is offensive for the government even to consider For nearly forty years, the Supreme Court whether an organization is religious in has held that even prayer in public schools character "The inquiry into the recipient's is unconstitutional. (Sa eg, Abbington religious views required by a focus on School Dist. Schempp, 374 U.S. 203 whether a school is pervasively sectarian is (1963); Engle v. Vitale, 370 U.S. 421 not only unnecessary but also offensive. It (1962).) In June 2000, the Supreme Court is well established, in numerous other declared unconstitutional student- contexts, that courts should refrain from delivered prayers at high school football trolling through a person's or institution's games. Santa Fe Independent School religious beliefs." (Id at 2551.) But if the District Doe, 120 S. Ct. 2266 (2000). This government cannot consider religious in case was decided by a six to three margin, distributing money, it will be nyuidr to with Rehnquist, Scalia, and Thomas subsidize religious schools on the same dissenting. Chief Justice Rehnquist, terms that it funds non-religious ones. writing for the dissent saw the majoritys Justice Thomas acknowledges and opinion as unjustified "hostility" to endorses this: "The religious nature of a religion. (Id at 2283.) recipient should not matter to the constitutional analysis, so long as the recipient Significantly, Justice Kennedy has been adequately furthers the government's unwilling to join the three most secular purpose." (Id) conservative justices on the issue of school prayer. In addition to deciding with Justice Thomas' equality approach would the majority in Santa Fe, Justice Kennedy not simply allow but would mandate wrote the opinion for the Court in Le, ,

93 Weisrran (505 U.S. 577 (1992)), which Conclusion declared unconstitutional clergy-delivered prayers at public school graduations. In Conservatives long have lamented L&, Justice Kennedy emphasized the Supreme Court decisions that interpret inherent coercion to such prayers. He did the Establishment Clause to limit aid to not join justice Scalia's biting dissent that parochial schools and prohibit prayer in stressed accommodating those who public schools. The Bush presidency and desired to pray. (Id at 645.) anticipated vacancies on the Supreme Court create the likelihood that Therefore, Bush would likely have to conservatives might get their wish to replace two justices from among Stevens, overrule these decisions. Of course, it all O'Connor, Kennedy, Souter, Breyer, and depends on who leaves the Court, who is Ginsburg to overrule the many precedents appointed, and how newly appointed limiting prayer in public schools. It is justices ultimately vote. But one thing is possible that two of these justices might fairly certain we can expect to see major retire in the next four years, and there is shifts in Establishment Clause no doubt that conservatives will push for jurisprudence in the years to come. replacements who would vote to overrule the precedents prohibiting prayer in public Copyright @American Bar Association schools.

E r=-n O"mmiky isthe S)dny M. ins profssor

94 be Back on the Docket Be Advised: 'Adarand' and Affimative Action Will American Lawyer

Monday, July 2, 2001

Stephen J. Wermiel

To lawyers throughout the land, the 10th U.S. name Adarand Constructors is already Now Adarand contends that the erred last synonymous with the movement to limit Circuit Court of Appeals affirmative action in the public sector. Be September when it upheld the U.S. advised: When the Supreme Court Department of Transportation's returns next October, Adarand, and Disadvantaged Business Enterprise affirmative action, will be back on the program. The program in its current form docket. This latest challenge to gives a competitive contracting advantage affirmative action in government to economically disadvantaged businesses contracts is just one of some 40 cases and then makes it easier for that the high court has agreed to hear minority owned firms to claim next term. As the justices recessed last disadvantaged status. The 10th Circuit week, they left behind a fall agenda that ruled that Congress, which authorized the includes free speech, the death penalty, program, was justified in trying to the Americans With Disabilities Act, and eliminate the effects of past the ongoing battle over discrimination, even under the most telecommunications regulation. Here are exacting form of constitutional scrutiny. a dozen of the most challenging cases: Adarand argues that the Court's scrutiny of the use of race was too lenient. The Bush administration hasn't filed its brief Affirmative Action. No case is likely to yet and faces the dilemma of whether to divide the justices more deeply than defend a federal program that appears Adarand Comtrcto Inc v Mirta, No. 00- inconsistent with the previously expressed 730. In 1995, in an earlier incarnation of views of the president, Attorney General the same case, the Court ruled 5-4 that all John Ashcroft, and Solicitor General racial classifications by any level of Theodore Olson. government--local, state, or federal--must be subjected to the highest level of Pornography. Two separate appeals by scrutiny under the equal protection the Justice Department address the touchy guarantee implied in the Fifth question of regulating pornography Amendment and spelled out in the 14th online. Ashorfi v AnETican Ci Lies Amendment. The standard applied in Uion, No. 00-1293, challenges a 1998 Adarand C rnxmtors v Pea means that federal law that makes it a crime for programs using race as a government commercial Web sites to display basis for decision making must be pornography without safeguards designed "narrowly tailored" to advance a to restrict access by minors. The Child "compelling interest." Online Protection Act was passed after 95 the Supreme Court struck down Congress' rally. The 7th Circuit found that the first attempt to shield minors from ordinance provided adequate access to the Internet porn. courts for those challenging denial of a permit for a 1997 rally in favor of Last June, the 3rd Circuit blocked the legalizing marijuana. But federal appeals 1998 law from taking effect. The court courts are divided on what kind of court said that the law's determination of what review is required under First Amendment is "harmful to minors" based on standards. "contemporary community standards" was unworkable for Web sites, which, of Death Penalty. One of the most closely course, operate nationally with no control watched cases of the next term will be over the location of individual visitors. In McCzrer v North Candina, No. 00-8727. Ash-tr v Fne Spah o2Nlitran, No. 00-795, Does executing convicted murderers who the justices will review a ruling by the 9th are mentally retarded violate the Eighth Circuit striking down part of a 1996 Amendment prohibition of cruel and federal law that prohibits computer- usual punishment? The answer will turn generated child pornography. The Child on the Supreme Court's view of whether Pornography Prevention Act expanded society's "evolving standards of decency" the definition of child porn to include a reflect a consensus against executing the "visual depiction" that "appears to be" a mentally retarded. At least 15 death minor engaging in sexual activity. The penalty states have specifically barred court said that since no actual children executing the mentally retarded, but many were involved, Congress was simply trying capital punishment states still permit it. to censor "evil ideas" in violation of the First Amendment. Privatization. In Conatzonal Seruas CGOP. v Malko, No. 00-860, a private company Adult Bookstores. City of Lo Argds v performing government tasks is being Alanrda Boks, No. 00-799, will test the sued for allegedly violating the power of cities under the First constitutional rights of an individual. The Amendment to restrict the number of Supreme Court has allowed these suits adult businesses at a single location. The against federal agents who violate 9th Circuit struck down a Los Angeles individual rights, but ruled in 1994 that ordinance that barred operation of more such suits weren't allowed against federal than one adult business in a building and agencies. The 2nd Circuit said that this defined a combined bookstore and video constitutional rights suit could be filed arcade as two separate businesses. While against a company that ran a halfway zoning laws have been an important house for the Federal Bureau of Prisons. means of regulating the sex industry, the The high court's ruling would likely apply appeals court said Los Angeles failed to to many other private companies that now show that having two related businesses at administer a broad range of government one location would increase the harmful functions. effects. Disabilities. Two cases will provide Public Protest. In Thon-s u Chicago Park guidance on the scope of the Americans Distrit, No. 00-1249, the justices will With Disabilities Act. In Toyta Moor decide whether a local ordinance must Mamcadwing Kentudey Inc v Wdlians, No. guarantee a quick court ruling on any 00-1089, the issue is whether repetitive decision to deny a permit for a public stress injuries are a disability under the

96 1990 federal law. The 6th Circuit ruled Lae ubm he teac wtitu tsW n~ka that a worker with carpal tunnel syndrome tz anda seminar on dy SiVMW Cdot was covered. Copyright 2001 Legal Times In US Airuays Ic v Banwtt, No. 00-1250, the question is whether the ADA requirement that an employer make a "reasonable accommodation" for disabled workers can require the employer to override its seniority system. The 9th Circuit said yes.

Telecommunications. The justices have also taken on some highly complex regulatory disputes. One set of cases -- National Cdle TV A ssoatin v GulfPouer Ca and Fakral Commicatis Cnwissin V GulfPover Ca, Nos. 00-832 and 00-843 - - asks whether the FCC may regulate the rates that utility companies charge cable operators for using utility poles and underground facilities to provide high- speed Internet access.

Another set of five cases addresses the FCCs regulation of the fees that local telephone companies charge new rivals for use of their existing networks. The cases are: Verizon ( mknica Inc v FCC, No. 00-511; Woddamn V Verizan Cmm icatie In, No. 00-555; FCC v Io=z Utilitif Bcamd, No. 00-587; A T& T; CoP.v I=a Utilitie Bcan No. 00-590; and Gerral Cnamicatiam In v Iowa Utiliti6 Ban4 No. 00-602.

Finally, the justices will rule on whether the decisions of state regulators under the 1996 Telecommunications Act may be challenged in federal court. The combined cases are: Mahis v Wodam Tehdog Im, No. 00-878; Verizon MD. In v Public Senice CoMnssion cfMD, No. 00-1531; and Unital Statu u Public Senice cOnnssn of MD, No. 00- 1711.

Stephen I. Wmiel is an assoiate pnfgsor at A rncan Unizty Washuo c