Court’s Liberal Bloc Stands Firm

Times Staff Writer

The Rehnquist court did not come to an end last week as predicted, despite the illness of the chief justice.

But the conservative Supreme Court led by Chief Justice William H. Rehnquist did fade away, a development as surprising as the retirement announced Friday by Justice Sandra Day O’Connor.

In its place at the end of the term stood a moderate-to-liberal court led by John Paul Stevens, the 85-year-old justice who sports bow ties and whose energy and influence seem to have grown with age.

By forming alliances with O’Connor or Justice Anthony M. Kennedy -- and sometimes even with Justice Antonin Scalia -- Stevens has been able to forge a majority in some of the biggest Supreme Court cases.


The loss of O’Connor’s vote might mean Stevens’ sway over the court has reached its high-water mark. But with Kennedy and four liberals still in place, the Stevens bloc isn’t likely to dissolve overnight.

He led a court this term that was determined to preserve the separation of church and state, increasingly willing to limit the death penalty, committed to removing racial bias from courtrooms and inclined to give cities broad power to regulate property.

In March, the justices struck down state executions of juvenile murderers as “cruel and unusual punishment,” with Kennedy casting the key vote for a 5-4 majority; O’Connor was in dissent.

This followed a ruling in January that struck down the federal sentencing rules on the grounds that they gave judges too much power to add years to a defendant’s prison term. In that 5-4 decision, Stevens formed an odd coalition that included Scalia and Justice Clarence Thomas. Again, O’Connor dissented.


On the final day of the term, a 5-4 ruling limited government-sponsored displays of the Ten Commandments. O’Connor joined Stevens in an opinion that said government officials could not promote or endorse religion.

Rehnquist was in dissent in all of these decisions.

This is not an entirely new trend. Indeed, this marks the third year in a row in which the liberal bloc has prevailed in the court’s biggest cases.

In 2003, a liberal majority, led by Stevens and O’Connor, upheld affirmative action in colleges and universities, and held that gay couples deserved respect in their private lives, not criminal prosecution. That 6-3 ruling, in a Texas case, struck down the last of the laws that made sex between gays a crime. In the mid-1980s, Stevens had argued in a similar case for striking down such laws, but he had done so in dissent.

Last year, Stevens spoke for a narrow majority that rejected the Bush administration’s contention that the president alone had the power to capture and hold “enemy combatants” -- both foreign and domestic -- for as long as he chose. The Constitution gives all individuals held by the government a right to go to court and to challenge the basis for holding them, Stevens said.

This term saw nearly a clean sweep for the liberal faction of the court.

The decision ending executions for young murderers followed in line with a Stevens opinion three years ago that ended state executions of mentally retarded criminals.

This year, the court also overturned two convictions of black men -- one in Texas and one in California -- because of racial bias in the makeup of the jury.


In what turned out to be one of the most controversial rulings, the court upheld the power of city officials to condemn private property, including homes, to make way for business development.

Stevens stressed that state legislatures may limit this power of “eminent domain,” but federal judges should not take on the task, he said.

“This is the term where Justice Stevens became ascendant,” Washington lawyer Mark I. Levy said. “It’s been a dreadful term for the conservatives. I can’t think of a single big case where the conservative side won.”

Pepperdine law professor Douglas W. Kmiec, a former Reagan administration lawyer, said it was a “deeply troubling” term.

He pointed to “conservative losses on federalism and on property rights” as well as the “muddle” on religion and the Ten Commandments.

In all these areas, the high court this year rejected earlier opinions by Rehnquist that once held sway with the majority, Kmiec said.

For much of Rehnquist’s tenure as chief justice, which began in 1986, the high court followed his lead. It gave more leeway to police and prosecutors. It rejected challenges to the death penalty. It restored support for state’s rights and for property rights.

It also moved away from a strict church-state separation. Rehnquist once derided Thomas Jefferson’s “wall of separation between church and state” as a “misguided metaphor ... based on a bad history.” Rehnquist said that from the days of George Washington, American officials had “acknowledged God” through solemn oaths, invocations and religious displays. He said he saw no problem with a “passive monument” of the Ten Commandments on public property.


The Bill of Rights, the first 10 amendments to the Constitution, commands that there can be “no laws respecting an establishment of religion.” The Ten Commandments begin with the words, “I am the Lord thy God. Thou shalt have no other gods before me.” Stevens said that if officials erected a monument of the Commandments at a government building, its message “is quite plain: This state endorses the divine code of the ‘Judeo-Christian’ God.”

In the court’s private conferences, Rehnquist and Stevens have special roles. The chief justice sits at one of end of the table and speaks first. He describes the issues in a pending case and says how he would resolve them.

Stevens, a 1975 appointee of President Ford, is the senior associate justice. He sits at the other end of the table and speaks next. Since the two often take opposite sides in major cases, the outcome turns on whether the other justices vote with Rehnquist or Stevens.

Once the votes are tallied, the chief justice, if he is in the majority, decides who writes the opinion. If not, Stevens decides who writes the opinion.

In the juvenile death penalty case, Roper vs. Simmons, Stevens had a 5-4 majority and assigned the opinion to Justice Kennedy. In his opinion, Kennedy noted that around the world, other nations had abolished capital punishment for crimes committed by people younger than 18.

“The stark reality is the United States is the only country in the world that continues to give official sanction to the juvenile death penalty,” Kennedy wrote.

That comment drew a sharp rebuke from Scalia. “I do not believe that the meaning of our [Constitution] should be determined by the subjective views of five members of this Court and like-minded foreigners.” Rehnquist agreed with Scalia.

Facing a clash between federal and state power, Stevens spoke for a 6-3 majority in ruling that the federal drug laws trumped California’s law allowing the use of medical marijuana.

Kennedy and Scalia joined him, but Rehnquist and O’Connor dissented in Gonzales vs. Raich.

In a test of the Title IX law that bolstered sports for women, Stevens assigned O’Connor to write a 5-4 ruling that held that coaches and teachers could not be punished for complaining about unequal treatment for girls’ and women’s teams. Rehnquist joined the dissenters in Jackson vs. Birmingham.

In the pair of cases on the Ten Commandments, the majority was split. In a Kentucky case, McCreary County vs. ACLU, Stevens had a 5-4 majority to rule that it was unconstitutional for officials to endorse religion by posting the Commandments in the county courthouse. Justice David H. Souter wrote the opinion, and Justices O’Connor, Ruth Bader Ginsburg and Stephen G. Breyer signed on.

In the Commandments case from Texas, the chief justice had a 5-4 majority, and he wrote an opinion that upheld the granite monument that had sat for 44 years on the grounds of the state capitol in Austin. Breyer agreed with the outcome, but he did not agree with Rehnquist’s view, leaving the chief justice without a true majority opinion in Van Orden vs. Perry.

Pepperdine’s Kmiec says Rehnquist’s illness had an effect this year. In October, the chief justice announced he had thyroid cancer, and he underwent surgery to have a hole opened in his windpipe. In January, he returned to the court on a part-time basis. And though he continued to preside over the court’s conferences, he spoke haltingly and with evident difficulty.

“His absence from the center chair [during many of the public arguments] could have shaped the dynamic in those close cases,” Kmiec said.

Rehnquist and Stevens were not always divided. The justices were unanimous in a series of important business rulings. They held that Internet companies could be held liable for stealing copyrighted materials if they actively aided computer users in downloading free music or movies.

And they ruled that scientists could use patented drugs in research on new drugs. And they limited the reach of an obstruction of justice law in overturning the criminal conviction against the defunct accounting firm of Arthur Andersen.

As the court’s only octogenarians, the two also share some old memories. It brought them together in a dissent from the ruling that was welcomed in California and in much of the nation. It was the 5-4 decision that struck down the state laws that banned the direct shipment of wine to consumers.

Stevens grew up during the 1920s in Chicago, where his father owned the city’s largest hotel. It was dry during the era of Al Capone and the gangster wars over booze. Rehnquist, born in 1924, grew up in Milwaukee.

The national experiment in the prohibition of alcohol ended in 1933 with the adoption of the 21st Amendment. But the amendment said the “importation into any state ... of intoxicating liquors, in violation of [their] laws, is hereby prohibited.”

“Today many Americans, particularly those members of younger generations who make policy decisions, regard alcohol as an ordinary article of commerce,” Stevens said in a lecture to his younger colleagues, such as 68-year-old Kennedy and 69-year-old Scalia.

He recalled in his written opinion the “moral condemnation ... of ‘demon rum’ in the 1920s and 1930s.... My understanding [and recollection] of the historical context reinforces my conviction” that the ban on cross-state sales of alcohol should be upheld as written.

Rehnquist agreed. So did O’Connor. The words of the 21st Amendment could not be clearer, agreed 57-year-old Thomas, showing again that neither ideology nor age was a sure predictor for a justice of the Supreme Court.



Key rulings

Major decisions in the 2004-2005 term of the Supreme Court:

States vs. federal power

Marijuana: Federal agents may seize homegrown marijuana from patients in California because the U.S. antidrug laws trump the state’s medical marijuana law (Gonzales vs. Raich).

Wine: States may not bar out-of-state vineyards from shipping wine directly to consumers if they permit their home-state vintners to do the same (Granholm vs. Heald).


Property rights

‘Eminent domain': Cities may condemn homes and stores to clear land for business development (Kelo vs. City of New London).

Rent control: Cities and states may impose rent control laws even when there is evidence that the measures are not achieving their intended goal (Lingle vs. Chevron).



Ten Commandments: County officials may not post the Commandments in courthouses for the purpose of endorsing religion. (McCreary County vs. ACLU); A monument with the Commandments erected by a private group that sits among other monuments on the grounds of the Texas Capitol does not violate the 1st Amendment (Van Orden vs. Perry).


Crime and punishment

Death penalty: States may not impose a death sentence for crimes committed by a person under age 18 (Roper vs. Simmons).

Dogs: Police may use drug-sniffing dogs to check a car that has been stopped for a traffic violation, even when officers have no reason to suspect a drug crime (Illinois vs. Caballes).

Race and juries: Strong suspicion of racial bias in the makeup of a jury calls for overturning a criminal conviction (Miller-El vs. Dretke and Johnson vs. California).

Domestic violence: Police cannot be sued for failing to respond quickly to enforce a restraining order (Castle Rock vs. Gonzales).

Sentencing: Federal mandatory-sentencing rules are unconstitutional, but judges may use them for guidance. (U.S. vs. Booker)


Business law

File sharing: Companies that actively aid computer users in downloading free copies of music or movies can be sued for copyright infringement (MGM vs. Grokster).

Farm ads: Farmers can be forced to pay fees to support government-sponsored ads to promote farm products (Johanns vs. Livestock Marketing Assn.).

Pesticides: Makers of federally approved pesticides can be sued in state courts if their products cause harm (Bates vs. Dow AgroSciences).

Age bias: Workers can sue their employer over job policies that have an unfair effect on them, even if they have no evidence of intentional discrimination (Smith vs. City of Jackson).

Broadband: Cable TV companies that offer broadband Internet services need not open their lines to independent providers of the service (National Cable Telecommunications Assn. vs. Brand X).