Supreme Court Ends Term With Eye on November

As if to get voters’ attention, the Supreme Court term that ended last week demonstrated again how one justice can make all the difference.

On issues ranging from the death penalty and abortion to affirmative action and aid to religious schools, the court was divided, 5 to 4.

And on major points of dispute, no justice is inclined to budge. The result is that the justices, perhaps more than anyone, realize that the balance will tip left or right only when the next president has a chance to name a new member of the court.

“There’s a sense of everyone around the building holding his breath,” awaiting the outcome of the November election, one justice said earlier this year.

The term’s final day Wednesday dramatically showed the divide.

A state law prohibiting so-called partial-birth abortion was struck down on a 5-4 vote, when Justice Sandra Day O’Connor joined with four liberal-leaning justices.

The same day, O’Connor joined a 5-4 conservative majority to rule that the Boy Scouts have a right to bar openly gay men from its leadership ranks.

In a third decision announced Wednesday, O’Connor split the middle. She voted with the conservative bloc to allow the use of federal funds to buy computers for use in parochial schools. However, she pointedly refused to sign the opinion written by Justice Clarence Thomas that would have allowed public aid to flow freely to religious schools.

In his opinion, Thomas accused the court’s liberals of defending anti-Catholic “bigotry.” Responding in a tone of dismay, Justice David H. Souter said that the Constitution simply forbids the government to subsidize “a religious mission.”

A few days before the court’s final decisions of the session, lawyers for Texas inmate Gary Graham had urged the justices to halt the pending execution so that a hearing might take place to consider new evidence that might call his guilt into doubt. On a 5-4 vote, the emergency appeal was denied, and Graham was executed.

A single new liberal justice could tip the balance against the death penalty; a single conservative could tip it against abortion.

Lest anyone miss what is at stake, Justice Antonin Scalia, the voice of the conservative right, took the opportunity Wednesday to lambaste the court as dangerously elitist, liberal and meddlesome. What began as judicial dissent ended as a call to arms. The current court is “aggressively pro-abortion,” he complained, as his black-robed colleagues listened impassively. He said that their ruling striking down the partial-birth abortion law would be viewed by historians as a blunder equivalent to the Dred Scott decision of 1857, which upheld slavery and triggered the Civil War.

The week before, Scalia had dissented when the majority rejected student-led prayers in public schools. And when his colleagues voted to uphold the Miranda decision that requires police to warn suspects of their rights, he thundered: “Judicial arrogance!”

Still, the last day was the worst in his view. The court had struck down a Nebraska anti-abortion law but upheld a Colorado law that prevented abortion protesters from confronting pregnant women face-to-face on sidewalks.

“Does the deck seem stacked? You bet!” he exclaimed, his words echoing in the courtroom. The right to abortion “must be overruled,” he concluded.

For a decade, the 64-year-old former law professor has denounced the court for being on the wrong side of the culture wars. “Day after day, in case after case, [the court] is busy designing a Constitution for a country I do not recognize,” he wrote in one dissent.

It is clear too that Scalia is speaking to a larger audience--the American voters who will go to the polls in the fall. By choosing the president, who in turn will select new justices, the voters have the ultimate power to change the direction of the Supreme Court. Texas Gov. George W. Bush, the Republican candidate, has described Scalia as his favorite justice. And the speculation among lawyers is that, if Bush is elected president, he will choose Scalia as chief justice, given the opportunity.

That prospect sends shudders through liberal groups. People for the American Way, the civil liberties lobby group, recently issued a report titled “Courting Disaster” that looks at the possibility of a Scalia-dominated court. It would mean a “radical, reactionary shift in American law,” said Ralph Neas, the group’s president. For his part, Vice President Al Gore, the Democratic candidate, has promised to nominate to the court a traditional liberal in the mold of the late Justices Thurgood Marshall and William J. Brennan.

None of the justices has expressed plans to retire in the next four years, but their ages alone would suggest that the next president will fill one or more vacancies. Chief Justice William H. Rehnquist, who was first appointed in 1972 by President Nixon, will turn 76 in October. The senior liberal is 80-year-old Justice John Paul Stevens, an appointee of President Ford.

O’Connor, President Reagan’s first appointee, stands at the center of the court’s divide and recently turned 70. To her left on the court are Stevens; Souter, 60, a George Bush appointee; Ruth Bader Ginsburg, 67, a Clinton appointee; and Stephen G. Breyer, 61, also a Clinton appointee. On her right are Rehnquist; Scalia, 64, a Reagan appointee; Thomas, 52, a Bush appointee; and, more often than not, Anthony M. Kennedy, 63, a Reagan appointee.

In the future, the court’s majority will belong to the president who names one or two new justices. This term, the conservative bloc failed again to muster a majority for overruling liberal precedents.

This comes as a mild surprise because seven of the nine justices are Republican appointees, and none of them is a solid liberal like Marshall or William O. Douglas. For example, none of the current justices says that the death penalty is flatly unconstitutional. But some of the conservatives--other than Scalia--voted to stand by precedents from the 1960s and ‘70s.

Last fall, the Republican National Committee urged the court to allow unlimited contributions to candidates for federal office. The majority, including O’Connor and Rehnquist, refused. Scalia, Thomas and Kennedy dissented. Scalia is determined to cut back on federal environmental laws. At issue last fall was whether citizens who are affected by polluted water or air can sue the polluters in federal court. In January, the majority upheld the federal law giving citizens a right to sue, over strong dissents from Scalia and Thomas.

In the spring, the court was faced with the question of whether to overrule or cut back on its decisions on school prayer, the Miranda warnings and the right to abortion. Again, the majority refused, over dissents by Scalia and Thomas.

In January, a 5-4 majority ruled that the nation’s 5 million state employees cannot sue if they are subject to discrimination because of their age. The majority--Rehnquist, O’Connor, Scalia, Kennedy and Thomas--said that states have a “sovereign immunity” from being sued in federal court. The dissenters pointed out that the U.S. Constitution says nothing of the sort.

In March, the Clinton administration’s plan to regulate tobacco products through the Food and Drug Administration also fell on a 5-4 vote. In May, the same 5-4 conservative majority struck down a federal law that gave victims of sexual assaults a right to sue their attackers.

Despite the conservatives’ support for states’ rights, the states are sometimes rebuffed when they take up liberal ideas. Speaking through Scalia, the court last week invalidated California’s policy of opening its primary elections to all voters, whether or not they have registered with a party. On occasion, liberal causes cannot muster a single vote. The case of an Illinois woman who nearly died of a burst appendix raised the question of whether an HMO can be sued for shoddy medical practices. No, the court said unanimously.

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Highlights of 1999-2000 Term

Freedom of Speech

* A California law that forbids companies to sell public information about those who have been arrested does not violate the 1st Amendment. (Los Angeles Police Department vs. United Reporting, 7-2 vote)

* States may limit campaign contributions to $1,000 without violating the 1st Amendment. (Nixon vs. Shrink Missouri PAC, 6-3)

* State university students can be required to pay fees that subsidize activist groups on campus. (University of Wisconsin vs. Southworth, 9-0)

* Congress cannot bar cable TV operators from carrying sexually explicit channels during daytime hours to prevent children from observing the scrambled signals. (U.S. vs. Playboy Entertainment Group, 5-4)

* California violated the 1st Amendment rights of political parties to choose their own nominees by allowing primary election voters to cast ballots for candidates of any party. (California Democratic Party vs. Jones, 7-2)

* Abortion protesters can be barred from coming within 8 feet of patients and doctors on the sidewalks in front of a medical facility. (Hill vs. Colorado, 6-3)

* The Boy Scouts have a 1st Amendment right to exclude openly gay men as adult leaders. (Boy Scouts vs. Dale, 5-4)

Federal vs. State Power

* State employees who suffer age bias may not sue a state agency for discrimination. (Kimel vs. Florida Board of Regents, 5-4)

* Congress can prevent states from disclosing personal information from driver’s license records. (Reno vs. Condon, 9-0)

* Congress exceeded its power when it gave rape victims the right to sue their attackers in federal court under the Violence Against Women Act. (U.S. vs. Morrison, 5-4)

* Whistle-blowers cannot bring fraud suits against state agencies. (Vermont vs. Stevens, 7-2)

Social and Family Law

* Judges cannot order grandchildren to visit their grandparents unless they first weigh the parents’ right to decide what is best for their children. (Troxel vs. Granville, 6-3)

* States may not ban doctors from performing an abortion procedure that opponents call “partial-birth” abortion. (Stenberg vs. Carhart, 5-4)

Religion

* School officials cannot sponsor student-led prayer at football games and other school events. (Santa Fe Independent School District vs. Doe, 6-3)

* Public funds can be used to pay for computers and other instructional equipment for use in parochial schools. (Mitchell vs. Helms, 6-3)

Crime and Law Enforcement

* A police officer who sees a person flee may pursue and detain him, even if the officer has no evidence of a crime. (Illinois vs. Wardlow, 5-4)

* Police cannot stop and frisk a pedestrian based solely on an anonymous tip that may not be reliable. (Florida vs. J.L., 9-0)

* Officers looking for drugs cannot squeeze and feel a bus passenger’s personal bags. (Bond vs. U.S., 7-2)

* Officers must give suspects “Miranda warnings” before questioning them. (Dickerson vs. U.S., 7-2)

* Juries, not judges, must decide whether a defendant receives a sentence beyond the maximum sentence for a crime because he was motivated by race or other biases. (Apprendi vs. New Jersey, 5-4)

Business

* The Food and Drug Administration does not have the authority to regulate cigarettes or tobacco products. (FDA vs. Brown & Williamson, 5-4)

* “Knock-off” products do not violate the Trademark Act. (Wal-Mart Stores vs. Samara Brothers, 9-0)

* Auto makers cannot be sued for having failed to install air bags in cars built during the 1980s. (Geier vs. American Honda, 5-4)

* Polluters can be sued by private citizens and forced to pay for environmental cleanups. (Friends of the Earth vs. Laidlaw, 7-2)

* Employees cannot sue their HMOs for putting profits ahead of the quality of their medical care. (Pegram vs. Hedrich, 9-0)

* States and cities cannot refuse to buy products from multinational firms that do business with Myanmar. (Crosby vs. National Foreign Trade Council, 9-0)