News Intelligence Analysis
From the New York Times
July 1, 2007
In Steps Big and Small, Supreme
Court Moved Right
July 1, 2007
By LINDA GREENHOUSE
WASHINGTON, June 30 — It was the Supreme Court that conservatives
had long yearned for and that liberals feared.
By the time the Roberts court ended its first full term on Thursday, the picture was clear. This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small.
As a result, the court upheld a federal anti-abortion law, cut back on the free-speech rights of public school students, strictly enforced procedural requirements for bringing and appealing cases, and limited school districts’ ability to use racially conscious measures to achieve or preserve integration.
With the exception of four death penalty cases from Texas, where the state and federal courts remain to the right of the Supreme Court and produce decisions that the justices regularly overturn, the prosecution prevailed in nearly every criminal case, 14 of the 18 non-Texas cases.
Fully a third of the court’s decisions, more than in any recent term, were decided by 5-to-4 margins. Most of those, 19 of 24, were decided along ideological lines, demonstrating the court’s polarization whether on constitutional fundamentals or obscure questions of appellate procedure. The court’s last-minute decision, announced on Friday, to hear appeals from Guantánamo detainees required votes from at least five of the nine justices.
Of the ideological cases decided this term, the conservative majority, led by Chief Justice John G. Roberts Jr. and joined by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., prevailed in 13. The court’s increasingly marginalized liberals — Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer — prevailed in only six, including the four Texas death penalty cases.
The difference depended on how Justice Anthony M. Kennedy voted. Remarkably, he was in the majority in all 24 of the 5-to-4 cases. In the 68 cases the court decided by signed opinions, Justice Kennedy dissented only twice.
The statistics underscore what case after case demonstrated as the term unfolded: Justice Kennedy’s role in the position that Justice Sandra Day O’Connor once held at the court’s center of gravity. “Kennedy is very much the median justice now, as Justice O’Connor was, and he is to her right,” said Steven G. Calabresi, a professor at Northwestern University School of Law.
Professor Calabresi, a former law clerk to Justice Scalia and a founder of the Federalist Society, added: “Clearly the court has moved in a direction that leaves most conservatives pleased.”
Justice O’Connor’s actual replacement, Justice Alito, who took his seat in January 2006 and who thus has just completed his first full term, is indisputably to Justice O’Connor’s right. His vote in place of hers made the difference in several important cases, including the decision to uphold the federal Partial-Birth Abortion Ban Act and to treat campaign advertising by corporations and unions as core political speech despite the restrictions imposed by the McCain-Feingold campaign finance law. Justice O’Connor would most likely have voted to uphold the Seattle and Louisville, Ky., school integration plans that the court, with Justice Alito in the majority, voted on Thursday to invalidate; she was the author of the court’s opinion in 2003 to uphold the affirmative action admissions plan at the University of Michigan law school.
It was that decision that prompted Justice Breyer’s highly unusual declaration from the bench on Thursday: “It is not often in the law that so few have so quickly changed so much.”
Conservative commentators, in discussing the court term, appeared to take pains not to gloat, tending to emphasize that a number of the decisions moved the law by increments rather than leaps or came in cases that were “pre-ordained to showcase the court’s conservative leanings,” as Professor Richard W. Garnett of Notre Dame Law School put it. “The marquee cases this term happened to reflect the culture war issues where Kennedy’s leanings are to the right,” he said.
But liberals were in an unrestrained “we told you so” mode.
“This court has shown the same respect for precedent that a wrecking ball shows for a plate-glass window,” said Ralph G. Neas, president of People for the American Way, which helped lead the effort to defeat the nominations of both Chief Justice Roberts and Justice Alito. Emily Bazelon, a liberal commentator on legal subjects for the online journal Slate, posted a column on Friday entitled, “Sorry Now?”
The question of how the court is treating its precedents is one that recurred throughout the term in various justices’ opinions. The court explicitly overturned only three precedents, two obscure cases from the 1960s that permitted excuses for missing court filing deadlines and a foundational antitrust decision from 1911 that prohibited manufacturers from imposing minimum retail prices.
Other precedents were left standing, at least for the time being, by decisions that avoided direct overrulings while providing a roadmap for future challenges. In several cases, a frustrated Justice Scalia prodded Chief Justice Roberts to move further and faster to overturn precedents that both men clearly dislike.
Their differences in style, while apparent, did not extend to difference in substance; in nonunanimous cases, the two were in agreement 89 percent of the time, according to statistics compiled by ScotusBlog.
One theme was the court’s sustained interest, across many areas of legal doctrine, in limiting the ability of plaintiffs to bring or appeal lawsuits. The trend was so pronounced that Professor Judith Resnik of Yale Law School proposed as a label for the term: “the year they closed the courts.”
Not all the access-limiting decisions were closely divided. In two important securities cases, the court placed new limits on shareholder lawsuits by votes of 8 to 1 and 7 to 1. Many cases on the court’s fast-growing business docket were decided by comfortable margins. “The entire Supreme Court has a mistrust of lawyer-driven litigation,” Roy T. Englert Jr., who has argued many business cases at the court, told a forum at the Washington Legal Foundation this week.
The court’s overall approach to business cases left many in the business community gleeful. “It’s our best Supreme Court term ever,” said Robin S. Conrad, executive vice president of the National Chamber Litigation Center, which handles Supreme Court cases for the United States Chamber of Commerce.
The 68 cases the court decided during the term that began last Oct. 2 and ended June 28 were the fewest since the 65 cases the court decided in 1953. That was in an era when the court received barely one-quarter of the 8,000 petitions it now gets every year. The court was deciding more than 100 cases a term as recently as the early 1990s. The justices are self-conscious about the low number and the resulting gaps in their argument schedule. But they seem unable to find a sustained flow of cases that four justices, the required number, are willing to vote to hear.
But the court’s move on Friday to add the Guantánamo case to its calendar came as a surprise. In its term that begins on Oct. 1, the court will hear challenges by two groups of Guantánamo detainees to the legislation barring their access to federal court. A Supreme Court that divided 5 to 4 this month on whether a prisoner should get three extra days to file an ordinary notice of appeal will have its work cut out as it confronts a clash of historic dimension between presidential power and individual rights.
Here are summaries of the term’s major decisions.
Equal Protection
By a vote of 5 to 4, the court invalidated voluntary integration plans in the school districts of Seattle and metropolitan Louisville, Ky., ruling that using a student’s race to govern the availability of a place at a desired school, even for the purpose of preventing resegregation, violated the 14th Amendment’s guarantee of equal protection.
Chief Justice Roberts wrote the opinion in Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908. But Justice Kennedy, a member of the majority, refused to sign the more far-reaching parts of the chief justice’s opinion that would have barred even more general considerations of race. His position in the middle of the court gave small comfort to the four dissenters, Justices Stevens, Breyer, Souter and Ginsburg.
Business
A pair of decisions made it more difficult for investors to sue companies, executives and underwriters when they suspect securities fraud or unlawful manipulation. In Tellabs Inc. v. Makor Issues & Rights Ltd., No. 06-484, the court ruled 8 to 1 that shareholders must show “cogent and compelling evidence” of intent to defraud in order to withstand dismissal of their lawsuit. Justice Ginsburg wrote the opinion, and Justice Stevens dissented.
In the second case, the court voted 7 to 1 to dismiss a shareholders’ antitrust suit that accused 10 leading investment banks of conspiring to fix the prices and terms for initial public offerings. The court held that the challenged behavior fell within the regulatory domain of the Securities and Exchange Commission, making the banks generally immune from antitrust liability. Justice Breyer wrote the opinion in the case, Credit Suisse Securities v. Billing, No. 05-1157, and Justice Thomas dissented. Justice Kennedy did not participate.
In its most important patent ruling in years, the court tilted away from patent owners and made it easier to find that a patent had been improperly issued for an invention that was “obvious” and therefore undeserving of patent protection. Justice Kennedy wrote the unanimous opinion in the case, KSR International Co. v. Teleflex Inc., No. 04-1350.
In an important antitrust ruling, the court voted 5 to 4 to overturn a 96-year-old precedent under which it was always illegal for a manufacturer and retailer to agree on minimum resale prices. The legality of price maintenance will now be judged case by case for its impact on competition. Justice Kennedy wrote the opinion in Leegin Creative Leather Products Inc. v. PSKS Inc., No. 06-480. The dissenters were Justices Breyer, Stevens, Souter and Ginsburg.
The justices continued to curb punitive damages in a 5-to-4 decision that overturned a $79.5 million award against Philip Morris. Justice Breyer’s majority opinion in Philip Morris USA v. Williams, No. 05-1256, held that the Oregon jury that gave the award to the widow of a lifelong smoker might have improperly calculated the figure to punish the cigarette maker for harm to other smokers as well.
The dissenters were Justices Scalia, Thomas, Ginsburg and Stevens.
Criminal Law
In Rita v. United States, No. 06-5754, the court held by a vote of 8 to 1 that even though the federal sentencing guidelines are no longer mandatory, a sentence within the guidelines range can be presumed on appeal to be “reasonable.” In federal circuits that adopt such a presumption, it will be more difficult for defendants to challenge sentences that follow the guidelines. Justice Breyer wrote the majority opinion, and Justice Souter dissented.
The court continued to interpret and apply the law Congress passed in 1996, the Antiterrorism and Effective Death Penalty Act, to restrict the jurisdiction of the federal courts to rule on habeas corpus petitions from state prison inmates. The justices ruled, 9 to 0, that the federal appeals court in California had overstepped those limits when it granted a new trial to a convicted murderer on the ground that the jury had been prejudiced against him by seeing the victim’s relatives in the courtroom wearing buttons with the victim’s picture on them.
Without deciding whether the buttons had, in fact, caused prejudice, Justice Thomas wrote for the court that under the 1996 law, a federal court could not base a grant of habeas corpus on a legal principle that the Supreme Court itself had not adopted. The case was Carey v. Musladin, No. 05-785.
The court ruled, 8 to 1, that the police did not violate a speeding driver’s rights by ramming his car and causing a devastating accident. The police officers’ decision to force the driver off the road after a high-speech chase was reasonable, Justice Scalia said in the majority opinion. Justice Stevens dissented, noting that the 19-year-old driver was suspected of nothing more serious than speeding. The case was Scott v. Harris, No. 05-1631.
A unanimous ruling extended to automobile passengers the same right that drivers have to challenge the validity of a decision by the police to stop the car. Passengers in a car stopped by the police do not feel free to walk away, the court held in an opinion by Justice Souter, and thus are “seized” for purposes of the Fourth Amendment’s prohibition of unreasonable seizure. The case was Brendlin v. California, No. 06-8120.
The court made it easier for prosecutors in death penalty cases to remove potential jurors who express ambivalence about the death penalty. Writing for the 5-to-4 majority, Justice Kennedy said appeals courts must defer to a trial judge’s decision on whether a potential juror would be able to overcome qualms about capital punishment and be open to voting to impose a death sentence. The dissenters, in an opinion by Justice Stevens that Justices Souter, Ginsburg and Breyer also joined, said this set the disqualification bar too low and would skew juries toward those most likely to vote for death. The case was Uttecht v. Brown, No. 06-413.
The court ruled 5 to 4 that a mentally ill convicted murderer who was delusional and lacked a “rational understanding” of why the state had sentenced him to death could not be executed. Justice Kennedy wrote the opinion in Panetti v. Quarterman, No. 06-6407. The dissenters were Chief Justice Roberts and Justices Scalia, Thomas and Alito.
Abortion
The court upheld the federal Partial-Birth Abortion Ban Act in a 5-to-4 decision that was a reversal of course and a reframing of the abortion issue. The decision in Gonzales v. Carhart, No. 05-380, was the first time the court had upheld a prohibition on a specific method of abortion. The law, enacted in 2003, subjects doctors to fines and prison terms.
In 2000, with Justice O’Connor in the majority, the court had voted 5 to 4 to strike down a nearly identical state ban, from Nebraska. Justice Kennedy’s majority opinion emphasized abortion’s “ethical and moral concerns” and said the law protected women who might otherwise have an abortion by the prohibited method from “regret,” “grief” and “sorrow.”
Justices Ginsburg, Stevens, Souter and Breyer dissented.
Access to Court
A deadline for filing a federal appeal could not be excused by the fact that a federal judge had given an inmate’s lawyer the wrong date, the court held in a 5 to 4 opinion by Justice Thomas. The decision, Bowles v. Russell, No. 06-5306, overturned two precedents from the 1960s that had endorsed a “unique circumstances” excuse for missed deadlines. Justices Souter, Stevens, Ginsburg and Breyer dissented.
The court rejected a longstanding position of the Equal Employment Opportunity Commission, which the Bush administration had repudiated months earlier, on the deadline for filing a pay discrimination case. The federal statute against employment discrimination requires an employee, as a condition of being able to proceed with a lawsuit, to file a formal complaint within 180 days of the discriminatory act.
Under the commission’s doctrine of “paycheck accrual,” that 180-day clock resets every time the employee receives a paycheck with pay lower than it would have been in the absence of discrimination. But the court’s 5-to-4 decision in Ledbetter v. Goodyear Tire and Rubber Company, No. 05-1074, requires the employee to have filed within 180 days of the act of discrimination, an interpretation that will keep many such cases out of court. Justices Ginsburg, Stevens, Souter, and Breyer dissented.
The court ruled 5 to 4 that taxpayers did not have standing to challenge the Bush administration’s expenditure of federal money to support its Office of Faith-Based and Community Initiatives. The dissenters in the decision, Hein v. Freedom From Religion Foundation, No. 06-157, were Justices Souter, Stevens, Ginsburg and Breyer.
In an important disability case, the court ruled that parents of children with disabilities could go to court without a lawyer to challenge a public school district’s plan for their child’s education. Justice Kennedy’s 7-to-2 opinion said that a federal statute, the Individuals with Disabilities Education Act, which guarantees a “free, appropriate public education” to all children, gives rights to parents as well. Justices Scalia and Thomas dissented from the decision, Winkelman v. Parma City School District, No. 05-983.
Speech
The court ruled 5 to 4 that the restriction on corporate- and union-sponsored television advertising, contained in the 2002 McCain-Feingold campaign finance law, threatened to curb core political speech. The provision could be constitutional, Chief Justice Roberts said, only if interpreted narrowly to apply only to advertisements that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
The dissenters, Justices Souter, Stevens, Ginsburg and Breyer, said the ruling would open the door to a flood of corporate and union money in the guise of the “sham” issue advertisements that the law was designed to stop. They said the opinion, Federal Election Commission v. Wisconsin Right to Life, No. 06-969, effectively overruled a major part of the law as well as the 2003 Supreme Court decision that had upheld it, a view with which many election law experts agreed.
School officials can censor and punish student speech that can be interpreted as advocating or celebrating the use of illegal drugs, the court held in ruling that a principal did not violate a student’s First Amendment rights by suspending him for his display of a banner proclaiming “Bong Hits 4 Jesus.” Five justices, in an opinion by Chief Justice Roberts, found no constitutional violation; a sixth, Justice Breyer, said the principal was entitled to immunity from damages no matter how the First Amendment question should be answered. Justices Stevens, Souter and Ginsburg dissented on First Amendment grounds. The case was Morse v. Frederick, No. 06-278.
Federal Authority
In its first encounter with global climate change, the court ruled by a 5-to-4 vote that the Environmental Protection Agency had the authority to regulate heat-trapping gases in automobile emissions. The agency had maintained that it had no such authority and that it would not use it if it did. But the court said the agency could refuse to act only if it provided a scientific basis for its refusal.
To reach that conclusion, the court first had to find that Massachusetts, which along with other states had brought the lawsuit against the E.P.A., was suffering the type of injury from the agency’s antiregulatory stance that gave the state standing to sue. Writing for the majority, Justice Stevens said states were due special deference in their claims to standing. The case, Massachusetts v. Environmental Protection Agency, No. 05-1120, marked a rare expansion by the court of the doctrine of standing. Chief Justice Roberts dissented, along with Justices Scalia, Thomas and Alito.
Copyright 2007 The New York Times Company
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