We've just witnessed a Supreme Court term dominated by two monumental decisions announced in its final days. In one case, the Court upheld existing precedent and continued the life of affirmative action in this country. In the other case, the Justices broke dramatically with their own precedent and recognized broad new privacy rights for gays and other individuals. In both cases, this generally conservative Court showed that it still has the capability to coalesce around a moderate or even liberal legal position.
The Michigan affirmative action cases and the Texas sodomy case were three of the more significant decisions offered by the Justices during their just-completed 2002-2003 term. It's a term that also will be known for several rulings in which the Court sided with patients and families against the medical establishment; for a continued tough-on-crime approach; for a slowing of a pronounced "federalism" doctrine; and for the term-long whispers about the retirements of Chief Justice William Rehnquist and Justice Sandra Day O'Connor — retirements that never happened during the course of the term.
The Court heard fewer cases than last term or the term before. In all, the Justices heard 84 cases, decided those and several others without oral argument, and declined to decide over 8,000 more. That means the Court, as has become its custom, heard about one percent of the cases that were sent its way by all sorts of people, corporations, and governmental entities. The Justices may not chime in often in the national debate but when they do they affect the lives of millions of people in ways large and small.
The Court continues to be a friend to law enforcement and, in most cases, no friend to criminal defendants. The Justices continue to be sensitive to the relationship between the federal government and the states, siding usually but not always with the states. And, despite the big rulings of the final week, the Court continues to chart a course to the right, away from its more recent predecessors but consistent with legal doctrines from its more distant past. In many cases — nearly half, in fact — the Court issued unanimous rulings on the ultimate merits. The Court still is sharply divided, it seems, but not as much as we've all come to think.
The Court voided a first amendment challenge to a cross-burning statute and upheld a long-standing federal ban on campaign donations. The Justices upheld a Kentucky law that forces HMOs to open up their doctor networks and a Maine law that requires drug manufacturers to subsidize the price of their products in order to make them more affordable to middle-class patients. And the Court, stemming its own tide of "federalism" decisions, ruled that state employees may also enjoy the benefits of the federal Family and Medical Leave Act despite state immunity arguments to the contrary.
These latter three rulings will help patients and families directly affected by health care problems, serious or not, and they represent three decisions that big business and state governments surely did not welcome or expect. Nor did most legal scholars expect the Court to express such reservations about "federalism" — a Chief Justice Rehnquist-inspired legal doctrine that expands state right and protections at the expense of the federal government's powers. The Family and Medical Leave Act case was just one of a handful which saw states' rights advocates lose out. Justice Ruth Bader Ginsburg, in fact, called federalism the "dog that did not bark" this term.
On the criminal law front, the Justices sided with a black death row defendant who tried on appeal to show that prosecutors had seated a jury based upon race, but refused even to hear a case that would have permitted the Justices to reevaluate the constitutionality of executing capital defendants who commit murder when they are juveniles. The Justices also ruled that the Constitution's protections against double jeopardy do not preclude a capital defendant from being sentenced to death following a second trial after being sentenced merely to life in prison after his first trial. And yet they sided with a death-row defendant who claimed that his lawyer had not adequately focused at trial upon the childhood abuse the defendant had endured as a child.
The Court upheld California's strict "three-strikes" sentencing rules that require life sentences for repeat offenders who commit relatively minor crimes. The Justices ruled unanimously that a suspect could be convicted of being part of a criminal conspiracy even if the police broke up the conspiracy at its nascent stages. And the Court ruled that police officers are protected from civil liability under the rubric of the Fifth Amendment's guarantee against self-incrimination even when they question a suspect while he is writhing in pain in a hospital room seeking medical treatment.
The Justices sided with abortion protestors, ruling that a federal racketeering statute could not be used in a civil case by an abortion clinic against those protestors. The Court ruled unanimously that states could push fraud charges against fundraising companies who try to deceive donors. And it ruled that Richmond, Va., can enforce an anti-loitering statute which permits the arrest on trespass charges of anyone who goes in or near a public housing project there.
The term most decidedly will not be known for the Court's involvement in defining the scope of the government's legal response to the war on terror. The Justices neither accepted nor decided on the merits any new terror law cases during the term. They did rule that legal immigrants may be detained without bail for a time while the immigration system figures out whether they ought to be deported. But the much more monumental legal issues arising out of the Sept. 11, 2001 attacks on America haven't yet reached the High Court. Maybe next term.
Speaking of next term, now the Justices, the Gang of Nine that has been together as a group for nearly a decade, goes off on an abbreviated summer break. Instead of beginning the next term on the first Monday in October, the Court has scheduled a four-hour oral argument on the massive the McCain-Feingold campaign finance reform case for Sept. 5. That means one month less vacation for the Court, and one month less to prepare for those poor attorneys who have to face a group of Justices that likely will be loaded for bear just after Labor Day.
By Andrew Cohen
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