July 1, 2003
In a Momentous Term, Justices Remake the Law, and the Court
ASHINGTON, June 30 — The Supreme Court term that ended
last week will leave as big an imprint as any in recent memory — not only
on the country, but on the court itself in ways few could have expected
when the term began.
Not only are the justices, whose average age is near 70, now involved in an unanticipated dialogue about the nature of human sexuality, they have displayed a new attentiveness to legal developments in the rest of the world and to the court's role in keeping the United States in step with them.
In an amazing final week, the court preserved affirmative action in university admissions, providing a safe harbor for a policy that Justice Sandra Day O'Connor's majority opinion described not as something to be grudgingly tolerated but as close to a moral imperative. Then the court found in the Constitution's due process guarantee a demand for gay men and lesbians to be accorded dignity and respect for their private sexual behavior.
These rulings followed by several weeks a decision that was in many ways equally surprising, opening states to lawsuits for violations of the federal Family and Medical Leave Act. Chief Justice William H. Rehnquist described that law as an appropriate exercise of Congressional power to combat stereotypes about female workers' domestic responsibilities and "thereby dismantle persisting gender-based barriers" facing women in the workplace.
Each of the three cases "addressed a rather new but rather widely supported cultural development and gave it constitutional legitimacy," Professor Paul Gewirtz of Yale Law School said. To some extent the court was leading the country, and to some extent it was playing catch-up, but the most significant aspect of the term, Professor Gewirtz said in an interview, was the court's role in "consolidating cultural developments," legitimizing them and translating them into "binding legal principle."
Justice Antonin Scalia, in a bitter dissenting opinion in the gay rights case, accused the court of having "taken sides in the culture war," and there was little dispute that, to some degree, at least, he was right. Justice Anthony M. Kennedy's majority opinion in Lawrence v. Texas provided much for Justice Scalia to regret, not least its embrace of the right-to-privacy line of cases that began with a birth control decision in 1965 and culminated 30 years ago in the abortion decision, Roe v. Wade.
And Justice Kennedy's citation of a 1981 gay rights opinion by the European Court of Human Rights, the first time a decision of that court has been invoked by a majority of the Supreme Court, marked a stinging defeat for Justice Scalia, who has tried to hold back the court's steadily growing interest in foreign legal developments. Justice Scalia criticized the majority's use of that decision, which Justice Kennedy cited as evidence of a Western consensus on sexual privacy, as "meaningless" and "dangerous," saying the court should not impose foreign views on American constitutional law.
The voting patterns this term gave Justice Scalia ample cause for disaffection. Thirty of 71 cases decided by published opinions were unanimous, leaving 41 contested cases. In these, Justices Scalia and Clarence Thomas were the court's most frequent dissenters, with 16 and 21 dissenting votes respectively. This was a change from recent terms, when Justice John Paul Stevens, the court's most liberal member, was consistently the most frequent dissenter.
Justice Stevens dissented 15 times this term, as did Justice Ruth Bader Ginsburg. The fewest dissenting votes, as usual, were cast by Justice O'Connor, with eight, followed by Chief Justice Rehnquist, with nine — making the indisputably conservative chief justice appear almost a centrist in the court's current spectrum.
In fact, "this term suggested a split between two kinds of conservative Republicans," Walter Dellinger, a former acting solicitor general and longtime student of the court, said in an interview. Justices Kennedy and O'Connor "share the sensibilities of corporate Republicans, who often have a bit of a libertarian streak in them," he said, while on social issues, "Scalia and Thomas represent the Moral Majority strain, which is vocal but not necessarily dominant."
Chief Justice Rehnquist, Mr. Dellinger said, often occupies a middle position between the two groups.
The voting record in the court's most closely divided cases demonstrates Justice O'Connor's pivotal role. There were 14 cases decided by 5-to-4 votes, accounting for 20 percent, compared with 28 percent last year. In the 2000-1 term, the fractious year of the Bush v. Gore election decision, fully one-third of the court's cases were decided, as that one was, on 5-to-4 votes.
Justice O'Connor was in the majority this term in all but 2 of the 14 5-to-4 decisions. In five of those, including two that upheld California's three-strikes sentencing law, she cast her vote with her more conservative colleagues. In four others, including the Michigan law school case and a case that preserved a nationwide program that provides money for legal services for the poor, she voted with Justices Stevens, Ginsburg, David H. Souter and Stephen G. Breyer.
That leaves five of the 5-to-4 decisions that fit no particular pattern. That is an unusually high proportion for the members of this court, who have now served together for nine years, a modern record. "Maybe the stability is leading them to act more like individuals and less as blocs," said Richard Lazarus, a professor at the Georgetown University Law Center and faculty director of its Supreme Court Institute. "To the extent that's true, the conservatives lose, because they are the ones with the potential to win through bloc voting."
It is a court that in recent years has displayed a notable institutional self-confidence, striking down federal statutes at near-record rates. That pace slowed this term, but the muscles the justices have been exercising were put to use in both the affirmative action and the gay rights decisions. The outcome in neither case was particularly surprising. It was the breadth of the majority decisions that was startling.
But those rulings, like many Supreme Court decisions, are part of an ongoing constitutional conversation that involves the court, the various branches and levels of government, and the public. In the gay rights case, "the court has initiated a dialogue with the country," said Prof. Robert Post of the University of California's law school at Berkeley. "Now the court will probably wait to see what the country says back."
The 2002-3 term, which began Oct. 7 and ended June 26, was notable for what it did not include as well as for what it did. All speculation and preparation to the contrary, there were no retirements.
These were the term's major rulings. The court's Web site, www.supremecourtus.gov, provides the full text of all decisions.
Equality
In striking down criminal sodomy laws in a case from Texas, the court issued a stunning declaration of constitutional liberty for gay men and lesbians. While the political, social and legal ramifications of the 6-to-3 decision may take years to play out, there was no doubt that Lawrence v. Texas, No. 02-102, was a constitutional watershed.
Justice Kennedy's majority opinion, overturning the court's 1986 decision in Bowers v. Hardwick and declaring that gays are "entitled to respect for their private lives" as a matter of constitutional due process, was joined by Justices Stevens, Souter, Ginsburg and Breyer. Justice O'Connor concurred separately in an opinion based on the guarantee of equal protection. Chief Justice Rehnquist and Justices Scalia and Thomas dissented.
The court preserved affirmative action in university admissions, upholding by a 5-to-4 vote the "holistic" and "individualized" approach used by the University of Michigan Law School. Justice O'Connor's majority opinion in Grutter v. Bollinger, No. 02-241, found that the program, both in its operation and in its diversity rationale, comported with the controlling opinion by Justice Lewis F. Powell Jr. in the Bakke case 25 years ago. The majority expressed the expectation that affirmative action would no longer be needed 25 years from now. Chief Justice Rehnquist dissented, along with Justices Kennedy, Scalia, and Thomas.
The University of Michigan's affirmative action program for its undergraduate college was unconstitutional, the court ruled by a 6-to-3 vote, because its awarding of 20 points on a 150-point admissions scale to black, Hispanic and American-Indian applicants was too mechanistic and quota-like. Chief Justice Rehnquist wrote for the majority in Gratz v. Bollinger, No. 02-516, joined by Justices O'Connor, Kennedy, Scalia and Thomas. Justice Breyer concurred separately. Justices Ginsburg and Souter, who dissented, would have upheld the policy, while the third dissenter, Justice Stevens, said only that he believed the court lacked jurisdiction over the case.
In an important voting rights case, the court endorsed a new approach to racial redistricting, permitting consideration of overall minority influence in the political process, beyond the actual number of minority voters in a particular district. The 5-to-4 decision in a case from Georgia gave ammunition to Democrats who, in alliances between black and white politicians, are trying to "unpack" black voters from districts with black super-majorities in order to give Democrats a better chance of recapturing suburban districts that Republicans drew in the 1990's for the purpose of electing white Republicans.
Justice O'Connor wrote the majority opinion in Georgia v. Ashcroft, No. 02-182, joined by Chief Justice Rehnquist and Justices Scalia, Kennedy and Thomas. The dissenters agreed with the majority in principle but warned in an opinion by Justice Souter that the majority opinion could prove insufficiently protective of black voting power.
A unanimous decision made it easier for workers to win discrimination suits against employers in cases where race, sex, religion or national origin is one factor among others in a dismissal or other adverse job action. Direct evidence of discrimination is not necessary in these so-called "mixed motive" cases, and circumstantial evidence is sufficient to show that discrimination was a "motivating factor," Justice Thomas wrote for the court in Desert Palace v. Costa, No. 02-679.
Criminal Law
A pair of decisions upheld California's three-strikes law that imposes long sentences for a third offense, even a nonviolent property crime. The defendant in Ewing v. California, No. 01-6978, received 25 years without parole for stealing two golf clubs, while the defendant in Lockyer v. Andrade, No. 01-1127, received 50 years without parole for shoplifting children's videos on two occasions, a total of $150 worth of merchandise. By a 5-to-4 majority in both cases, the court rejected the argument that the sentences were so disproportionate to the crimes as to violate the Eighth Amendment's bar against cruel and unusual punishment. Justice O'Connor wrote the majority opinions. The dissenters were Justices Breyer, Souter, Stevens, and Ginsburg.
In two death penalty cases, a majority expressed concern that the lower federal courts were not monitoring with sufficient vigilance the quality of justice being meted out by state courts. By a vote of 8 to 1, with Justice Thomas dissenting, the court ordered the federal appeals court to grant a habeas corpus hearing to a Texas death row inmate, Thomas Miller-El, who said the selection of his jury had been infected by racial bias. Writing for the court in Miller-El v. Cockrell, No. 01-7662, Justice Kennedy said that in order to qualify for a hearing, an inmate needed to present only a plausible case and not, at that preliminary stage, a winning one.
In the second case, the court ruled that a federal appeals court should have granted a writ of habeas corpus to a Maryland death row inmate, Kevin Wiggins, on the basis of ineffective assistance of counsel. The 7-to-2 majority overturned the death sentence on the ground that the defense lawyers' failure to investigate and inform the jury of the childhood abuse Mr. Wiggins suffered fell below the minimum constitutional standards of competence. Justice O'Connor wrote the majority opinion in Wiggins v. Smith, No. 02-311. Justices Scalia and Thomas dissented.
The court placed strict limits on the government's ability to force mentally ill defendants to accept medication in order to become competent to stand trial. Under the court's new guidelines, forcible antipsychotic medication for a mentally ill defendant accused of a nonviolent crime — in this case, a dentist, Dr. Charles T. Sell, charged with Medicaid and mail fraud — "may be rare," Justice Breyer wrote for the 6-to-3 majority in Sell v. United States, No. 02-5664. Justices Scalia, O'Connor and Thomas dissented.
The court rejected two constitutional challenges to the Megan's Law sex offender notification and registration statutes that all 50 states have enacted in the last decade.
In one case, the court held by a vote of 9 to 0 that Connecticut did not need to provide offenders with individual hearings before posting their photographs and information on its Internet registry. A federal appeals court had ruled that the offenders had a due process right to hearings at which they could try to show that they did not present a threat to the community. But Chief Justice Rehnquist wrote for the court in Connecticut v. Doe, No. 01-1231, that rather than predicting dangerousness, the registry simply listed offenders and their conviction records and did not raise a due process issue.
The court also ruled 6 to 3 that Alaska's application of its Megan's Law to those whose convictions for sex crimes predated the law's passage did not violate the constitutional prohibition against ex post facto legislation. The Ex Post Facto Clause bars retroactive punishments, but Megan's Laws impose not punishment but a "civil, nonpunitive regime," Justice Kennedy wrote for the court in Smith v. Doe, No. 01-729. The dissenters were Justices Stevens, Ginsburg and Breyer.
The court addressed the ex post facto prohibition in a second case, ruling that the government cannot retroactively apply a newly extended statute of limitations to those for whom the original statute — and any prospect of legal liability — had already expired. The 5-to-4 decision, Stogner v. California, No. 01-1757, limited a California law that sought to revive liability for long-ago sex crimes and could have nationwide impact on child molestation cases. Justice Breyer wrote the majority opinion and Justices Kennedy, Scalia, Thomas and Chief Justice Rehnquist dissented.
The court voted 9 to 0 to uphold restrictions imposed by the Michigan prison system on the right of inmates to receive visits from family members and acquaintances. An inmate who commits two violations of the prison's drug or alcohol rules loses all family visiting privileges for at least two years. Justice Kennedy wrote for the court in Overton v. Bazzetta, No. 02-94, that the restrictions were rationally related to prison administration needs.
In a unanimous interpretation of a federal law that makes it a crime for a convicted felon to own a gun, the court held that federal judges do not have authority to restore the right to gun ownership. Congress had stripped that authority from the Bureau of Alcohol, Tobacco and Firearms after finding abuses 11 years ago, and the question in United States v. Bean, No. 01-704, was whether sympathetic judges could do an end run around the ban by granting relief themselves. Justice Thomas wrote the opinion.
The court overturned a federal racketeering judgment against a coalition of anti-abortion groups that conducted a campaign of disrupting and blockading abortion clinics in the 1980's. The National Organization for Women and two abortion clinics had brought a successful suit for damages and an injunction based on the Hobbs Act, which outlaws obstructing commerce "by robbery or extortion."
But by an 8-to-1 vote, the court said that while the protesters' behavior might well have amounted to coercion, which the Hobbs Act does not cover, it did not fit the legal definition of extortion, which requires actually obtaining another's property by force or threat. Chief Justice Rehnquist wrote for the court in Scheidler v. National Organization for Women, No. 01-1118, while Justice Stevens dissented.
Federal Authority
In an unexpected turn in the court's federalism revolution, the court ruled that states can be sued for violating their employees' federally guaranteed right to take time off for family emergencies. With an opinion by Chief Justice Rehnquist, the court voted 6 to 3 to reject Nevada's claim of constitutional immunity from suit under the Family and Medical Leave Act. The dissenters in Nevada Department of Human Resources v. Hibbs, No. 01-1368, were Justices Kennedy, Scalia, and Thomas.
The court upheld the mandatory detention provisions of a 1996 immigration law, ruling by a vote of 5 to 4 that the government can imprison immigrants it is seeking to deport without first giving them a chance to show that they present neither a flight risk nor a danger to the community. The case, Demore v. Kim, No. 01-1491, did not deal with terrorism but rather with a category of lawful permanent residents convicted of drug offenses and other "aggravated" offenses. Chief Justice Rehnquist wrote the majority opinion, joined by Justices O'Connor, Kennedy, Scalia and Thomas.
The court overturned a California law that required insurance companies doing business in the state to produce the names of policyholders who bought coverage from the insurers' Europe-based parent companies between 1920 and 1945. The law was intended to help Holocaust survivors and their descendants receive payment on the policies.
The 5-to-4 decision in American Insurance Association v. Garamendi, No. 02-722, held that the state law conflicted with the federal government's authority to conduct foreign policy. The government has been encouraging negotiation rather than litigation to resolve the Holocaust-era insurance problem. Justice Souter wrote the majority opinion, joined by Chief Justice Rehnquist and by Justices O'Connor, Kennedy and Breyer.
Business
In a significant term for business cases, the most important decision for many businesses was probably one that placed new limits on punitive damages. On a 6-to-3 vote, the court overturned the $145 million in punitive damages awarded by a Utah jury against the State Farm insurance company, which had exposed a policyholder to personal liability by initially refusing to settle a claim in an automobile accident case.
The jury also awarded $1 million in compensatory damages. Justice Kennedy's majority opinion, finding the 145:1 ratio "irrational and arbitrary," set new guidelines for punitive damages: neither a defendant's wealth nor its conduct outside the state's borders should ordinarily be considered, and there should be only a small ratio of punitive damages to compensatory damages, perhaps as low as 1:1. Justices Scalia, Thomas and Ginsburg dissented in State Farm v. Campbell, No. 01-1289.
It was also an important term for intellectual property. The court upheld the 20-year extension that Congress granted in 1998 to all existing copyrights, ruling 7 to 2 that while the Copyright Term Extension Act might not be good public policy, it came within Congress's explicit constitutional authority. The 7-to-2 decision in Eldred v. Ashcroft, No. 01-618, with a majority opinion by Justice Ginsburg, was a major victory for Hollywood studios and other big corporate copyright holders. Justices Stevens and Breyer dissented.
A trademark dispute between the Victoria's Secret retail empire and Victor's Little Secret, a Kentucky shop selling sex toys, produced the court's first interpretation of a new law intended to protect famous brand names from copycat uses that dilute their impact in the marketplace. The court ruled unanimously that while the famous trademark owner does not have to show actual economic damage in order to win a case under the Federal Trademark Dilution Act, it does have to prove some form of current harm, such as a blurring of a distinctive identity. Justice Stevens wrote the opinion in Mosely v. V Secret Catalogue Inc., No. 01-1015.
A ruling on managed health care unanimously upheld Kentucky's "any willing provider" law that requires managed care plans to accept any qualified doctor who wants to be a participating provider. About half the states have such laws, which the court in Kentucky Association of Health Plans v. Miller, No. 00-1471, found were not pre-empted by the federal law that regulates employer benefit plans.
In another health care case, the court gave qualified approval to Maine's innovative effort to reduce prescription drug prices for uninsured state residents. The 6-to-3 decision lifted an injunction against the Maine Rx program, under which the state assumes the role of a pharmacy benefits manager and presses drug manufacturers to grant price rebates. In a splintered set of opinions, Justice Stevens wrote for the court on most aspects of the issue in Pharmaceutical Research and Manufacturers of America v. Walsh, No. 01-188. Justices O'Connor and Kennedy, along with Chief Justice Rehnquist, filed a partial dissent.
In a decision at the intersection of bankruptcy and telecommunications law, the court ruled 8 to 1 that the Federal Communications Commission had improperly canceled the valuable wireless communications licenses that a bankrupt company had won at auction and then could not pay for. It was a huge victory for a startup company, NextWave Telecom, which got back the licenses for which it had initially agreed to pay $4.74 billion before defaulting after an initial $500 million downpayment.
The decision, Federal Communications Commission v. NextWave Personal Communications Inc., No. 01-653, held that the company should have been given a chance to work out a new payment schedule under federal bankruptcy protection. Justice Scalia wrote the majority opinion and Justice Breyer dissented.
In a decision on employers' liability for damages for workers' exposure to asbestos, the court ruled 5 to 4 that some workers who have developed asbestos-related but noncancerous disease can recover damages based on their "genuine and serious" fear of eventually developing cancer.
The decision, Norfolk & Western Railway Co. v. Ayers, No. 01-963, was a disappointment to a broad swath of businesses that had expected to enlist the court in addressing the asbestos liability issue. In an unusual alignment, Justice Ginsburg wrote the majority opinion, joined by Justices Stevens, Scalia, Souter, and Thomas. Justice Kennedy dissented, joined by Justices O'Connor and Breyer and by Chief Justice Rehnquist.
Free Speech
The justices decided five First Amendment cases and — unusually for this speech-protective court — rejected the constitutional claim in all five.
By a vote of 6 to 3, the court upheld the Children's Internet Protection Act, which requires public libraries to install antipornography filters on all computers providing Internet access, as a condition of receiving federal subsidies and grants. Librarians may unblock certain sites at the request of adult patrons, but because the law had been blocked from taking effect, it is unclear how it will work in practice. Chief Justice Rehnquist wrote a plurality opinion for himself and Justices O'Connor, Thomas and Scalia, while Justices Kennedy and Breyer concurred on narrower grounds. Justices Stevens, Souter and Ginsburg dissented in United States v. American Library Association, No. 02-361.
In striking down a Virginia cross-burning statute, the court ruled that states may make it a crime to burn a cross as long as the law clearly gives prosecutors the burden of proving that the act was intended as a threat and not as a form of symbolic expression. The First Amendment permits the government to single out cross-burning as a "particularly virulent form of intimidation," Justice O'Connor wrote for the court in Virginia v. Black, No. 01-1107. The dissenters, Justices Souter, Ginsburg and Kennedy, objected that the decision permitted the state to single out one especially potent symbol for criminal treatment.
In a campaign finance case, the court upheld the longstanding ban on direct corporate contributions to candidates in federal elections. The 7-to-2 majority refused to create an exception permitting unlimited contributions by corporations organized for the purpose of ideological advocacy. While the ruling was not directly related to the major new campaign finance law, the constitutionality of which will be argued before the court in a special session on Sept. 8, some of the new law's supporters were encouraged by the decision in Federal Election Commission v. Beaumont, No. 02-403. Justice Souter wrote the majority opinion while Justices Thomas and Scalia dissented.
The court rejected a telemarketer's First Amendment challenge to a state consumer-fraud prosecution, ruling unanimously that charitable solicitations that include deliberate misrepresentations about what proportion of the money raised will actually go to the charity can be prosecuted as fraud. But wrongdoing cannot be inferred from the bare fact of high fund-raising costs, Justice Ginsburg said for the court in Illinois v. Telemarketing Associates, Inc., No. 01-1806.
The court ruled unanimously that a policy limiting access to a public housing project in Richmond, Va., was not unconstitutional on its face just because it had the potential for chilling free speech on the premises by nonresidents. Justice Scalia wrote for the court in Virginia v. Hicks, No. 02-371, that someone whose speech was actually restricted by the policy could challenge it in a subsequent lawsuit.
Finally, an important commercial speech case fizzled unexpectedly on
the final day of the term when the court dismissed
Property Rights
The court upheld a nationwide program that channels millions of dollars every year to legal services for the poor by pooling the interest earned on short-term deposits that lawyers hold in trust for their clients. Every state has a local version of the Interest on Lawyers' Trust Accounts program, known as Iolta, long a target of a conservative legal group here, the Washington Legal Foundation, which argued that the program amounted to an unconstitutional "taking" of clients' private property. The 5-to-4 decision found there was no taking because individual clients could not earn net interest on such small short-term deposits. Justice Stevens wrote the majority opinion in Brown v. Legal Foundation of Washington, No. 02-1325. Justices Scalia, Thomas, Kennedy, and Chief Justice Rehnquist dissented.