Still Waters Run Deep At Court
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
There are memorable Supreme Court terms and then there are Supreme Court terms like the one we have just witnessed. No one retired from the Court between the first Monday of October, 2004, and the last week of June, 2005. There were no seminal decisions affecting the legal war on terror. No grand constitutional crises were averted. And nothing the justices decided is likely to fundamentally alter the political, cultural, or religious tensions that now reign in America.
The Court this past term resolved its share of important cases, of course, and some of these cases impacted the lives of millions of Americans. But the justices have that effect on the country each term. Every year the Court reapportions in ways large and small rights and responsibilities; power and priorities; rules and standards; liabilities and limitations. Under the Constitution, the justices more often tinker than they dismantle and this past term surely was a term of tinkering.
Today, wine drinkers in one state may buy wine from vineyards in another state. One year ago today, they could not. Today, the feds may prosecute users of medical marijuana whose doctors have prescribed the drug for them under valid state law. One year ago today it was not at all clear that the feds could. Today, the police may use search dogs to inspect cars even if they have no reasonable suspicion that there are drugs in that car. One year ago today, the police could not undertake those sorts of searches. One year ago today, it was unclear whether local officials could for economic purposes take private property for just compensation under "eminent domain" powers. Today, it is clear that they may if state law permits it.
One year ago today, employers could not be held liable for age discrimination if they did not intend to harm the employee. Today, those employers may be held liable. One year ago today, federal judges were required to impose sentences in criminal cases based upon mandatory guidelines established by Congress and the Justice Department. Today, those guidelines are merely advisory. One year ago today, it was unclear whether federal law prohibited foreign felons from possessing firearms here in the States. Today, it is clear that this federal law falls short of that goal.
But just because this term did not generate the type of momentous single ruling that people will be talking about for decades doesn't mean that there wasn't a remarkable trend or two that could be discerned from the scores of judgments rendered by the justices. And the trend that resonates with me this late June is a trend that surely must concern judicial and political conservatives alike. As the Rehnquist Court nears its end, and as the nation prepares for the possibility of a new personal dynamic on the bench, the Court's majority this term consistently and sometimes passionately rose to protect the interests of criminal defendants, who often have been some of the most consistent if un-mourned legal "victims" of the so-called Rehnquist Revolution. And it did this to the visible and eloquent dismay of the three Lions of the Court's Right — the Chief Justice and Justices Antonin Scalia and Clarence Thomas.
This trend is no small thing. It suggests that a working and stable majority on the Court feels a growing level of discomfort toward some of the substantive and procedural rollbacks we've seen in the rights of criminal defendants, especially in capital cases, over the past generation. We saw clues of this movement last term, when the Court threw federal sentencing guidelines into turmoil by prohibiting judges from imposing sentences based upon facts that were not proven to jurors beyond a reasonable doubt. We saw sparks of it the term before that, in 2002-2003, when the Justices ruled that states could not execute mentally-retarded murderers. And, the term before that, we saw the Justices throw out death sentences because judges, not juries, had acted impermissibly as fact-finders. But the 2004-2005 term may end up being known as the term in which these isolated cases coalesced into something larger than the sum of its parts.
One year ago today, for example, a juvenile who murdered before reaching the age of 18 could be given the death penalty. Today, that option is no longer available. One year ago today, California law made it more difficult for a defense attorney to challenge a prosecutor's choice to exclude potential jurors from a case. Today, that state law follows the federal constitutional rule designed to ensure that prosecutors do not exclude jurors based upon race. One year ago today, Texas prosecutors had gotten away with a shameless procedure that amounted to racial bias in jury selection. Today, that procedure is unconstitutional.
One year ago, it was possible for a state to bar financial assistance for poor people who pleaded guilty to crimes but who then wanted to appeal their sentences. Today, no such law is permitted under the Constitution. One year ago today, a prisoner seeking to raise a constitutional claim about his or her parole process had to overcome a nearly insurmountable appellate hurdle. Today, that hurdle remains high but much lower. One year ago today, a capital defendant had to choose between federal and state courts in making certain kinds of appeals. Today, if that prisoner chooses to seek recourse in state court the federal courts have the authority to stay any federal claims until the state court claims have been resolved.
Taken together, these rulings say that there are a majority of justices on the Court who are no longer willing to be patient and to wait for lower courts or state legislators (or Congress, for that matter) to ensure more fairness and accuracy in capital cases in particular. Taken together, these decisions are some of the practical consequences of the concerns Justice Sandra Day O'Connor raised in a speech four years ago when she said: "If statistics are any indication, the system may well be allowing some innocent defendants to be executed ... Serious questions are being raised about whether the death penalty is being fairly administered in this country."
This is not to say that the Court suddenly has turned on its tail and has gone "soft on crime." There were plenty of rulings this past term — about a dozen, by my count — that count as "tough on crime" verdicts from the justices. Criminal defendants and convicted felons today still have it much tougher on appeal than their predecessors might have had it a few decades ago. The tide has not turned. But the relentless "refinement" (read: narrowing) of procedural rules governing criminal cases has ebbed. And that is a legacy that most Court observers would not have predicted a few years ago from this particular group of Justices. The legacy of the Rehnquist court is secure, but it is still being shaped. And this past term it was shaped more subtly than anyone might have expected.
So now the Gang of Nine, in various stages of health and well-being, all head off for their summer vacations. The world they will return to on the first Monday in October clearly will be different than the one they leave behind today. The question for the season, however, is whether the shiny, happy faces on the bench will be different a few months from now. If so, a new era on the Court may begin. If not, the Rehnquist Court will yet have another opportunity to shape its destiny. And then we'll have an opportunity to see whether this term's curious trend continues or just fades away.
By Andrew Cohen