Status Check: SCOTUS

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Published on Monday, 30 June 2008

Written by Tony Mauro, Legal Times

Despite June Fireworks, a Calmer Supreme Court Term

The headline Supreme Court decisions came fast and sometimes furious in June: Gitmo Detainees Get Habeas! No Death Penalty for Child Rapists! Exxon Valdez Punishment Slashed! And on its final day in session, June 26, the biggest headline yet: An Individual Right to Bear Arms!

All four produced sharp splits (three were 5-4, and Exxon was 5-3 because of Justice Samuel Alito, Jr.'s recusal). Conservatives and liberals won two apiece.

So was it the end of a brief era of good feelings on the Court this term? Before the last few weeks, all signs had pointed to less rancor behind closed doors than the previous term. Was that now history?

Not yet. In spite of the June jousting, the justices head out for far-flung summers in a generally better frame of mind than last term. The 5-4 decisions were sharply down -- only 11 compared to 23 last term. With some remarkable crossover votes by liberals to the conservative side, the Court also achieved consensus on issues that have divided them in the past. The most spectacular example: Baze v. Rees, in which Justice John Paul Stevens joined the conservatives to form a 7-2 majority in favor of a disputed lethal injection procedure -- even as Stevens declared for the first time his opposition to the death penalty.

Justice Antonin Scalia will always fulminate, as he did when he said in the detainee case that the majority opinion "will almost certainly cause more Americans to be killed" and in his attack on "wrongheaded" dissenters in the gun case. And Justice Anthony Kennedy will always emote, as he did in both the Guantanamo case and in his death penalty decision. "Decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment," Kennedy wrote.

But looking back, it seems that something was different, and calmer, about this term compared to the previous one, when the justices divided angrily over abortion, race and religion, and the Court seemed ready to break out in fistfights.

Finding Consensus

Some Court-watchers detect evidence of a more confident chief justice who was able to achieve consensus on narrower opinions this term than last. "I see a much greater cohesiveness on the Court, and a lot of argumentative punches being pulled," says John Attanasio, dean of Southern Methodist University School of Law and a constitutional scholar.

At a simple human level, the justices, like a family that hits a rough patch, may have decided this term not to sweat the small stuff, to avoid touchy subjects and choose their battles more wisely (and schedule them for late in the term). "They don't want to have fights over piddling stuff," says Gibson, Dunn & Crutcher's Miguel Estrada. "The Court was very dissatisfied with its own performance last term," adds Thomas Goldstein of Akin Gump Strauss Hauer & Feld, speaking at a Washington Legal Foundation briefing. "The Court is trying to behave more like a court and less like a political institution."

O'Melveny & Myers' appellate chief Walter Dellinger III offers another simple answer. "It's the docket," he said at a National Chamber Litigation Center briefing where he appeared with Estrada. Unlike last term, Dellinger said, the justices this term decided "no abortion case, no religion case, no race case." Indeed, appraising the run of cases the Court decides in one term in contrast to those of another has to take into account the vagaries of when certain cases arrive on the Court's doorstep.

But there still may be something more substantial going on.

Scalia himself hinted as much in a recent appearance on PBS' "Charlie Rose," part of his book promotion tour. With a chief justice "as persuasive as Roberts is, you want to go along," Scalia said.

Roberts lets justices talk at greater length at conference than predecessor William Rehnquist did, Scalia added. And Roberts will sometimes come to Scalia asking if he could possibly join a narrow opinion for the sake of securing a seven-vote majority which will "look better" than a 5-4 decision. Scalia hastened to add that as persuasive as Roberts is, he -- like most justices -- would never sign onto an opinion with which he disagrees.

Scalia's comments confirm what George Washington University law professor Orin Kerr saw this term: a chief justice increasingly successful at steering the Court toward a more minimalist -- and easier to agree with -- approach to deciding even the knottiest cases.

"This is what the chief justice said he would do" when he joined the Court in 2005, says Kerr, a former clerk to Kennedy. "The Court is settling down a bit" after its tumultuous previous term, he adds, and is coalescing around narrower positions.

Even the rulings that set off the June fireworks fit Kerr's theory, he insists. The decision in Boumediene v. Bush guaranteeing habeas rights for Guantanamo detainees, written by Justice Anthony Kennedy, was foreshadowed by Rasul v. Bush in 2004 and should have been no surprise. Justice David Souter, providing cover to Kennedy in a concurrence, even said the result in Boumediene was "no bolt out of the blue."

Kerr adds that Kennedy v. Louisiana, barring the death penalty for the non-homicide rape of a child, was a smaller step than it appeared to be. It merely "elaborated" on the Court's 1977 decision in Coker v. Georgia, which barred execution for those who rape an adult.

District of Columbia v. Heller, declaring an individual right to bear arms, was a landmark case, Kerr says, but it allows for regulation of the right and sets no standard for assessing such regulations. During oral argument in March, Roberts repeatedly questioned why the Court needed to articulate such a standard in addition to establishing the right, and Scalia clearly went along with that minimalist approach when he wrote the majority opinion.

Kerr says Scalia may also have added the section reassuring that many firearm regulations would remain constitutional, in order to hang onto Kennedy's crucial fifth vote. Kennedy's past role as a swing vote re-emerged in several key cases this term.

Darling of the Defense Bar

The Court was also more centrist this term in some areas of the law, which also turned down the heat. Criminal defendants won a remarkable number of victories, and not just on the child rape issue. In Gall v. United States and Kimbrough v. United States, the Court affirmed the broad discretion of judges to deviate from sentencing guidelines. The Kimbrough case targeted the wide discrepancy between sentences for crack and powder cocaine .

Scalia was in the majority in both cases and in several others in which defendants won this term. "I should be the darling of the criminal defense bar," Scalia said on the PBS show.

Sidley Austin's Jeffrey Green, a criminal defense expert who won Gall, does not disagree. "Justice Scalia has been a stalwart for the defense bar. He deserves the award," Green says, adding that overall this term was better than most for defendants.

On the business side, after crowing about a run of victories in the previous term, the U.S. Chamber of Commerce saw some defeats -- especially in employment discrimination cases. "What went wrong?" the chamber's Robin Conrad asks. One big factor, she says, was that "the solicitor general filed against us in every case we lost."

In several cases, precedent in favor of the employee was undeniably strong -- as in probably the leading employment case of the term, CBOCS West v. Humphries, decided by a lopsided 7-2 margin, with Scalia and Justice Clarence Thomas in dissent. The Court ruled that a federal civil rights statute allowed for claims that an employee was retaliated against for complaining about workplace racial discrimination.

But all was not lost for business advocates this past term. The most positive development for corporate counsel was the Court's embrace in several cases of a single federal regulatory regime over the vagaries of tort suits and differing regulation in the 50 states. In other words: federal pre-emption.

O'Melveny's Dellinger said that when he talks with business leaders, "the single legal area they care about the most is federal pre-emption."

Burned by aggressive state attorneys general and unpredictable state jury verdicts, companies are willing to cast their lot with federal regulation. The growth of a global economy, Dellinger says, has also made nationalization of regulation "an almost inevitable necessity."

But the high court did not always go along in years past, especially during the Rehnquist Court's federalism juggernaut when states were accorded more weight in the federal-state balance. Says Gibson Dunn's Estrada, "It's a very important sign now that the Court is seeing that there is a federal side to the federalism balance."

The Court ruled in favor of federal pre-emption in disputes over faulty medical devices in Riegel v. Medtronic, shipment of tobacco products in Rowe v. New Hampshire Motor Transport Association, employment arbitration in Preston v. Ferrer, and corporate speech about unionizing efforts in Chamber of Commerce v. Brown.

Pre-Emption Trap?

Consumer advocates see danger in the Court's pre-emption trend. Expanding federal pre-emption eliminates state tort suits and thereby "removes an important deterrent that episodic federal regulation can't accomplish," says Georgetown University Law Center professor David Vladeck, formerly with the Public Citizen Litigation Center. "The business community has so weakened the federal regulatory apparatus that they now say, 'We like the feds.' "

What if that federal apparatus falls into Democratic hands after the next presidential election? "That [risk] is part of the bargain," Estrada says. "Most businesses will say, 'We'll take the single poison.' " Even Vladeck acknowledges the risk of more aggressive federal regulation is probably worth the gamble for business. "The next president is going to have a very difficult time turning the ship of state. You don't rebuild a decimated [Food and Drug Administration] overnight."

By this time next year, the high court itself may be rebuilt, with one or more liberal justices being replaced by a new president. The trends discerned this term might be reinforced, or may be history. Justice John Paul Stevens will be 89, and Ruth Bader Ginsburg will be 76 and are viewed as possible retirees.

This fall, says Akin Gump's Goldstein, voters will not only be choosing between Barack Obama and John McCain, but between "Sonia Sotomayor and Paul Clement," a reference to potential nominees from the left and right. No matter who wins, he adds, "This Court will change."

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