Ascendant Stevens

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The U.S. Supreme Court’s term ended with a surprise earlier this summer–and it was not just the retirement of Justice Sandra Day O’Connor. Rather, its liberal faction, led by 85-year-old Justice John Paul Stevens, prevailed in nearly all the major cases.

The court abolished the death penalty for juvenile offenders, struck down mandatory federal sentencing rules, overturned a nearly 20-year-old Texas murder conviction because of lingering concerns about racial bias in the makeup of the jury, gave cities broad power to regulate property, and said federal law trumps a state’s medical marijuana initiative.

On the final day of the term, the court reaffirmed the separation of church and state when it struck down, 5-4, the posting of the Ten Commandments inside two Kentucky county courthouses. If government officials prominently display the biblical commandments in public buildings, it sends a message that is “quite plain: This state endorses the divine code of the Judeo-Christian God,” Stevens wrote. McCreary County v. ACLU of Kentucky, No. 03-1693.

In all these rulings, Stevens was in the majority and assigned the writing of the opinion, while Chief Justice William H. Rehnquist dissented. Lawyers who closely follow the court’s work saw an unmistakable shift from years past.

Conservative Dystopia

“This is the term where Justice Stevens was ascendant,” says Washington, D.C., lawyer Mark I. Levy, a former Justice Department attorney. “It was also a dreadful term for the conservatives. I can’t think of a single big case where the conservative side won.”

From the outside, it was hard to gauge whether the chief justice’s illness explained the shift. Pepper dine University law professor Douglas Kmiec says Rehnquist’s absence from the court likely had an impact.

“When he is in the center chair asking questions, or when he is leading off the discussion at the conference, it has a way of shaping the dynamic. In a close case, it could make the difference,” says Kmiec, a former Reagan administration lawyer.

In October, the chief justice was diagnosed with thyroid cancer and began treatment. Doctors inserted a tube in Rehnquist’s windpipe to aid his breathing. He continued to work from home, however, and returned to the court in January. His colleagues said he ran their conferences with his usual efficiency and command. And during oral arguments, he showed he was fully prepared and asked probing questions of the lawyers.

But the results told a different story. Kmiec notes that in areas such as property rights and federalism, the court retreated from doctrines that Rehnquist had established.

Strengthening property rights had been a hallmark of Rehnquist’s earlier years as chief justice, but this year, advocates of property rights suffered three defeats. In the term’s most controversial decision, the court ruled cities have broad power to condemn homes and small stores to make way for business development.

“We decline to second-guess the city’s considered judg­ments” on what should be done to revitalize its down­town, Stevens said for the 5-4 majority in Kelo v. New London, No. 04-108.

O’Connor wrote a memo­ra­ble dissent: “The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing a Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

The court also said rent-control laws may not be challenged in court, even if they are not meeting their goals. Lingle v. Chevron, No. 04-163, upheld Hawaii’s law that limits the rents that oil companies may charge for service stations.

And the owners of a San Francisco hotel were told they could not go to federal court to challenge as unconstitutional a $567,000 city fee for having converted rental units into hotel rooms. These takings challenges must go to state court, the court said in San Remo Hotel v. San Francisco, No. 04-340.

The major federalism case tested the reach of federal power, and Stevens spoke for a 6-3 majority in saying that federal law trumps a state’s medical marijuana law. Gonzales v. Raich, No. 03-1454.

O’Connor and Rehnquist dissented, along with Justice Clarence Thomas. What is left of the limits on federal power, they asked, if federal agents may raid the homes of sick people and seize their homegrown marijuana? “If the majority is to be taken seriously, the federal government may now regulate quilting bees, clothes drives and potluck suppers,” Thomas said.

But the justices were not always divided along ideological lines. They were unanimous in the term’s major business cases.

The entertainment industry won a new legal weapon to combat Internet piracy in MGM v. Grokster, No. 04-480. Companies that induce computer users to down­load free copies of music and movies may be sued and put out of business, the high court said. This case was seen as a test of whether copyrights can survive in the Internet era.

Patent holders in the biotech area did not fare as well. In Merck KGaA v. Integra Lifesciences, No. 03-1237, the court ruled 9-0 that drug researchers may use patented drugs and devices to develop new pharmaceuticals. The decision applies to a 1984 law that was designed to encourage the speedier development of generic drugs.

And the court limited the reach of the obstruction of justice statute in overturning the criminal conviction of the Arthur Andersen accounting firm. A staff lawyer’s advice that the auditors should follow the company’s document retention policy may not be deemed a “corrupt” move to destroy evidence, Rehnquist wrote in a 9-0 decision. Arthur Andersen v. United States, No. 04-368.

Bad for Biz Lawyers

But business lawyers suffered a little-noted loss that could prove significant, Levy says. In Bates v. Dow Agro Sciences, No. 03-388, the court said the makers of pesticides may be sued for damages in state court if their products cause harm.

The 7-2 opinion, written by Stevens, rejected the Bush administration’s claim that such state suits were pre-empted because the pesticides carry a federally approved warning label.

“This is a big loss because pre-emption is a recurring issue. And this decision could make it harder to win on preemption” and keep the case away from a jury, Levy says.

As the term ended, most attention focused on the loss of O’Connor and what it will mean for the future. She cast the deciding vote in recent years to preserve church-state separation, the McCain-Feingold campaign finance law, and affirmative action in colleges and universities.

In the Ten Commandments cases, she voted to strike down both their posting inside the Kentucky courthouses and the granite monument on the grounds of the Texas Capitol in Austin. Van Orden v. Perry, No. 03-1500. And she insisted that government-sponsored religious expression threatens religious liberty. “Allowing government to be a potential mouthpiece for competing religious ideas risks the sort of division” the Constitution sought to avoid, she wrote.

Early in her career, O’Connor said the government may not be seen as endorsing religion, and since the late 1980s her endorsement test has held sway when the justices considered cases regarding establishment of religion. O’Connor did not insist on rigid church-state sep­aration, however. She cast the fifth vote to uphold Ohio’s school voucher law, which provided tax money to low-income parents to send their children to religious schools.

She also held the court’s middle-ground position on race and affirmative action. She spoke for the court’s conservative majority in striking down a city’s contracting set-asides for minority contractors, as well as a state’s electoral districts when they were drawn along racial lines. The equal protection clause forbids such explicitly race-based decision-making, she said.

But two years ago, O’Connor spoke for a narrow liber­al majority to uphold affirmative action in colleges. “In a society like our own, … race unfortunately still matters,” she wrote. She approved the admissions programs at the University of Michigan Law School because applicants were judged as individuals, she said, and not based on quotas or a race-based grid.

Lawyers who practice regularly before the court say they could count on O’Connor being at least open to persuasion. For the advocate, it will be a different expe­rience without her there, they say.

“She has been the heart and soul of the court’s middle for at least 15 years,” says Washington lawyer Carter G. Phillips. “No advocate who went to the podium was not thinking about how to win her vote.”
David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

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