RENEE MONTAGNE, host:
This is MORNING EDITION from NPR News. I'm Renee Montagne.
The justices of the Supreme Court are scattering for the summer, and even they apparently don't know whether Chief Justice William Rehnquist plans to retire. Earlier this week, the ailing chief justice gaveled the court to a close without a word about his plans. That left much of Washington awash in speculation about the court's future at the same time that the pontificators are analyzing the opinions handed down over the last months. NPR legal affairs correspondent Nina Totenberg has this review of the just-concluded term.
NINA TOTENBERG reporting:
The current crop of justices has now served together longer than any nine-member court in the history of this country. And Yale Law Professor Akhil Amar says the decisions this term show it.
Professor AKHIL AMAR (Yale Law School): It's maybe just like an old married couple that completes each other's sentences or a group of friends who are so familiar with each other that they just tell jokes by numbers. So perhaps unless we have a real shaking up of personnel that scrambles the whole kaleidoscope, we're less likely to see something really new because we know where these justices are on these issues.
TOTENBERG: The issues are not insignificant. This year, there were big cases involving the juvenile death penalty, the separation of church and state, cases on the age of technology and computer file sharing, on sex, race and age discrimination, on the rights of the disabled and a host of other questions. And yet, says Amar...
Prof. AMAR: If Rip Van Winkle went to sleep before the term began and woke up after the term had ended, he wouldn't have missed very much.
TOTENBERG: Many, if not most, court scholars would agree that this was a relatively tame term. Court watcher Bruce Fein.
Mr. BRUCE FEIN (Supreme Court Watcher): This term, I think, showed the court with a split personality. I think on the cutting social issues, it was clearly in the liberal side of the equation. On criminal justice issues, outside the death penalty, it was tough on crime.
TOTENBERG: Stanford law professor Pam Karlan calls this the term of the dog that didn't bark.
Professor PAM KARLAN (Stanford): The most important thing about the term was the thing that didn't happen. There were a number of cases on the docket that could have fundamentally shifted some important doctrine and they didn't.
TOTENBERG: In two major cases, the court declined to disturb decades of established law. And while both results caused something of a hue and cry, the bottom line was that the court left the status quo in place and left the political branches to make changes if they want to. In one case, the court ruled that the federal ban on marijuana trumps state laws that allow the medical use of the drug. And in the other, the court ruled that the federal constitution does not trump state and local government rights to take private property for development projects, as long as the property owners are paid just compensation. Stanford's Pam Karlan.
Prof. KARLAN: The thing that makes it an interesting case, of course, is that the right and the left kind of come around full circle on it. So on the one hand, you have the property rights movement, which is appalled, and on the other hand you have largely poor and minority communities, which are appalled.
TOTENBERG: But as Supreme Court advocate Tom Goldstein observes, the court's property rights ruling reiterated decades of established law.
Mr. TOM GOLDSTEIN (Supreme Court Advocate): There was an incredible outcry when America figured out that the law now, as it's been the law for more than 50 years, has been that the government can take your property to further economic development. People just didn't realize that was the case.
TOTENBERG: One surprise came not in the court's doctrine this term but in its voting patterns. In previous terms, the court's five most conservative justices--Scalia, Thomas, Rehnquist, O'Connor and Kennedy--stuck together to prevail in at least half the 5-to-4 decisions. But this term, the coalition held together in only one-fifth of the closely divided rulings. Again, Tom Goldstein.
Mr. GOLDSTEIN: On almost everything that was significant, they could not hold a five-justice majority together to win.
TOTENBERG: And on different issues, there were different defectors. On the juvenile death penalty, it was Justice Anthony Kennedy who joined the four liberals and wrote the opinion striking down capital punishment for those under 18. In an important age discrimination case, it was Justice Antonin Scalia who defected. In a sex discrimination case, it was Justice Sandra Day O'Connor. And in a case involving discrimination against the handicapped on cruise ships, it was Kennedy again who defected to the liberal side, declaring that US law covers cruise ships operating in US waters.
In all, the states' rights revolution seemed to fizzle even more this term and, once again, congressional power to regulate prevailed, as it did in the medical marijuana case. Writing for the court majority, Justice John Paul Stevens said it is up to Congress to change the law, not the courts. Similarly, he said in the property rights case it is not up to the court but to state legislatures to curb the government's power to take private property. Stanford's Pam Karlan says the conservative revolution may simply have run out of steam.
Prof. KARLAN: I think there's a natural tendency to pull back towards the center. This court has been in business together so long that they maybe have gone as far as they can go until either the country catches up to the direction they were moving or the country moves in a different direction.
TOTENBERG: Just how closely divided the court remains, however, was demonstrated clearly in the two cases testing displays of the Ten Commandments on public property. Four justices would have permitted both displays and four justices would have permitted neither. Most court watchers had expected Justice Sandra Day O'Connor to be the swing vote in the case, but she was firmly in the camp that would have permitted neither display. And it was a Clinton appointee, Justice Stephen Breyer, who split the difference and became the deciding vote. In the case from Texas, he said the granite monument was permissible because it had been on the state capital grounds for 40 years without objection and was surrounded by other non-religious monuments. But in the other case from Kentucky, he agreed with the four justices who said the display clearly had a religious motivation, that, in fact the public officials who put up the display said their purpose was to advance the nation's Christian heritage.
Breyer's role this term was pivotal. Indeed, in the 10 most ideological 5-to-4 splits, he was always in the majority. Who else was pivotal? Well, it depends who you talk to. Many believe that in recent terms, Justice John Paul Stevens, appointed to the court by President Ford, had been the most influential. Though he was deemed a moderate conservative when appointed, the ideological center of gravity in the court has shifted so much over the decades that he is now perhaps the most liberal member of the court. At 85, he is next in seniority to the chief justice. He is fit, is hiring clerks for two years hence and this term, at least, wrote some of the court's most important opinions, as well as assigning all of those in which the chief justice was not in the majority. Former solicitor general Ted Olsen.
Mr. TED OLSEN (Former Solicitor General): He manages to get a majority over and over and over again for the ideas that he thinks reflect the right result and opinions. And somehow, he manages to get a different set of allies depending upon the circumstances of the case.
TOTENBERG: Bruce Fein, a conservative who served in the Reagan Justice Department, thinks that Justice David Souter showed his influence this term as author of one of the court's Ten Commandments decisions, as well as an important death penalty decision involving race discrimination in jury selection and the court's unanimous decision holding that computer software companies are liable for damages when they facilitate the theft of copyrighted music and movies through file sharing. Bruce Fein.
Mr. FEIN: He writes in a style that is nuanced and is non-Gladiatorial, unlike, say, Justice Scalia or Thomas, and is somewhat effective in galvanizing the liberal block.
TOTENBERG: Kermit Hall, author of "The Oxford Companion to the Supreme Court," sees Chief Justice Rehnquist's once strong influence now fading.
Mr. KERMIT HALL (Author, "The Oxford Companion to the Supreme Court"): I don't see William Rehnquist's mark on the term that just ended the way we would have seen his mark on the term of three or four years ago. This court is not as strongly conservative or strongly moving to the right as it was.
TOTENBERG: Few would deny that. The question is whether it is the chief justice's health that has diminished his influence or the continuing rise of the center.
Nina Totenberg, NPR News, Washington.
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