This extraordinary year in American history was no less extraordinary when it comes to the world of the law. For American justice, it was a year of both change and continuity; stability and chaos.
It was a year in which we witnessed grand constitutional drama and silly, sleazy tabloid fare. It was a year in which we lost legal giants Archibald Cox and Sam Dash (on the same day!) and yet sadly spent much of our time talking about why Scott would have murdered Laci. It was a year in which it finally appeared there would be an imminent change in the makeup of the Supreme Court due to Chief Justice William Rehnquist's serious illness.
It was a watershed year for the courts in the war against terrorism and a disastrous year for the courts in the struggle to maintain a coherent way to sentence criminals to prison. It was a bad year for the death penalty, a good year for the Pledge of Allegiance, a bad year for the First Amendment, and a good year (in spite of all those state amendments) for same-sex marriage.
It was a bad year for outgoing Attorney General John Ashcroft and a good year for incoming Attorney General Alberto Gonzalez, who, in spite of that shameful war powers memorandum he authorized, is one mighty step closer to the Supreme Court. It was a terrible year for Mark Geragos, who represented Scott Peterson, and a great year for Pamela Mackey, who represented Kobe Bryant. It was a year of waiting for Robert Blake, whose murder trial has just begun, and for Michael Jackson, whose child sex trial is on deck.
By far the most important legal news of the year came in late June. Nearly three years after the attacks on America, the Supreme Court finally asserted itself as a co-equal branch of government by limiting the power of the executive branch during this indefinite time of undeclared war. Justice Sandra Day O'Connor's line from the "enemy combatant" case - "a state of war is not a blank check for the President" - surely will be cited generations from now when our children and grandchildren confront the age-old problem of the laws of war.
And, already by year's end, the court's vital rulings (the justices also issued a ruling based upon the detention of prisoners at Guantanamo Bay) had changed the dynamic in the legal war on terror. The original "enemy combatant" - Yaser Esam Hamdi - was simply set free and sent back to Saudi Arabia after the feds, for years, had called him a danger to America. There were more lawsuits, more challenges to White House authority, and more victories for individuals at the expense of government power.
The pendulum, which swung widely in favor of safety over liberty just after Sept. 11, 2001, now has begun to swing back a bit. Now, thanks to the court, lower court judges at least are requiring the government to better prove its assertions instead of simply taking at face value those declarations of "Butt out, Judge, and trust us when we tell you that this is a terrorism issue" that we heard repeatedly just after the twin towers fell. There is more balance in the law today than there has been at any point since Sept. 10, 2001.
Meanwhile, the court lost much of its logic and eloquence when it also ruled in late June that a state judge in Washington could not add prison time to a sentence based upon factors not found by a jury. This ruling, in Blakely v. Washington, generated outright chaos at both the federal and state level because thousands of criminals have been so sentenced over the years. The uproar was so immediate and the turmoil so great, in fact, that the justices promptly added two more sentencing cases to their present docket in order to try to fix the problem they themselves caused; tens of thousands of cases could be affected by the ruling, expected before the end of June 2005.
But if the court fumbled the sentencing issue, the justices deftly decked one watercooler issue (the constitutionality of the Pledge of Allegiance) even as another (same-sex marriage) came barreling straight toward them. Thanks largely to a landmark decision by the Massachusetts Supreme Court, same-sex marriage fought its way onto the legal map in 2004. Look for it to stay there for years to come.
And even though the court was able to dismiss the Pledge case this year on a technicality, the justices will not be so lucky a few years from now, when the same-sex marriage bandwagon rolls up to their courthouse after stops in California, New York, and just about any other state you can think of.
Death penalty statutes were declared unconstitutional in Kansas and New York while the courts of Texas, in true civil rights era style, continued to defy the Supreme Court about capital case procedures. Meanwhile, the justices will soon decide whether capital punishment is constitutional in cases in which the murderer is under the age of 18 when the crime is committed. Executions were down in 2004 and so were capital sentences (Scott Peterson notwithstanding).
2004 also saw a notable shift in the balance between the free press rights of reporters and the crime-fighting responsibilities of prosecutors. Even as they risk their necks to report the war in Iraq and Afghanistan, journalists of all stripes came under increasing fire here at home from prosecutors and judges willing to threaten and then bring contempt charges against a reporter who is unwilling to reveal a source.
In spite of the First Amendment, there never has been a federal right for journalists to be free from this sort of intimidation but never before, on the other hand, have journalists faced such systemic pressure. It's a theme to watch for in 2005.
What else to look for in 2005?
Look for a big confirmation fight over the next Supreme Court justice, or the next chief justice (or both, depending upon what the White House wants to do). Look for the Jackson sex trial to be resolved before trial lest it devolve further into a media circus that will make the O.J. Simpson criminal case look like the court at the Hague. Look for new sentencing rules. Look for another now-anonymous citizen to become a icon - Laci, Amber, Chandra, etc. - thanks to a horrible tragedy.
If 2004 taught us anything about the law, it's that it can be very grand and very small all at the same time.
By Andrew Cohen