Supreme Court Wrap
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MARGARET WARNER: The high court’s 76 rulings this term ranged from thorny First Amendment issues dealing with free speech and church-state questions, to the death penalty, privacy, and several heavily litigated laws enacted by Congress.
We get an assessment of the term now from four constitutional law professors: Kathleen Sullivan of Stanford, where she is also dean of the law school; Christopher Yoo of Vanderbilt; Akhil Amar of Yale; and Bernard James of Pepperdine. Welcome to you all.
Professor Yoo, beginning with you, what are the one or two big sort of broad themes or trends you see coming out of all of these decisions?
CHRISTOPHER YOO: In my opinion, there are three major themes that emerge from this court’s term.
The first is that this was a big term for the First Amendment. There are a number of very important free speech cases, including three cases involving sexually explicit speech, which is always a very controversial topic and of course the big vouchers case involving the establishment clause.
In addition, I think it was a big case for business– a big term for business. Slightly more than half the court’s docket, 52 percent of the court’s docket was devoted to business cases; that’s up from 40 percent last year and 30 percent two terms ago.
But perhaps the biggest headline is not something that happened but rather something that didn’t happen. Traditionally if a Justice is going to retire, they announce that fact from the bench on the last day of the term. That did not happen. And so the current court will sit as composed as it is now, apparently for at least one more year.
MARGARET WARNER: Kathleen Sullivan, what would you add to that list: Free speech, First Amendment and business cases?
KATHLEEN SULLIVAN: I think the two big cases of the term, Margaret were the vouchers case already mentioned and a case involving states rights. The vouchers case, which just came down yesterday, really took the court one step further than it has ever gone before in approving the flow of public funds to religious indoctrination.
It is one thing if you let public funds go to the school bus driver who drives the kids to school or to the computers that they use once they get there, as the court has previously said was okay under the establishment clause.
But yesterday, it really ruled for the first time and with a strong endorsement of Justice O’Connor, who had hedged in the past, said very strongly for the first time, no, the public money can flow right to religious indoctrination as long as it does so through the hands of the parents who are spending the school vouchers to send their kids to parochial schools.
And the court said that a great deal turns on the fact that this is a matter of private choice, but I think we can all see that we wouldn’t think it was a matter of private choice if the government gave you a voucher and you could use it to send your kid to a racially discriminatory private school. So the court is really allowing a kind of leeway for the public funding of religion that it wouldn’t allow in other areas of public spending.
And on the other big case of the term, the court really again took a step further on states rights and said that now there is a principle of state, what it calls sovereign immunity, a right not to be sued for damages. States can’t be sued not only in state courts not only in federal courts but they can’t even be hauled in for administrative procedures in such administrative bodies as maritime commissions.
MARGARET WARNER: This is that South Carolina case.
KATHLEEN SULLIVAN: That’s right, saying basically that if the folks have trouble with what the bureaucrats running the harbor have to say about their ships, they can’t bring that grievance — a state can’t be brought into the grievance procedure. That, again, was a bold statement in favor of states rights, not pretending to rest on language in the Constitution but on a deep structural principle that states cannot be threatened by any kind of proceeding that they haven’t consented two, so two bold statements, one for religious groups and one for states’ rights.
MARGARET WARNER: All right. Professor James, what is your hit parade of the big themes this term?
BERNARD JAMES: I think in the term, the decisions this term, you see clear effects in terms of the public policy debate occurring in two major areas. The first one that comes up is education reform, and Kathleen mentioned the voucher case. There were two other decisions that, in effect, signal the green light for educators to continue the debate on how to reform public education.
I think the voucher case can be seen as a case that answers a very narrow question of what the Constitution permits but it doesn’t come close to determining, as I think it properly should stay away from, the local question of whether vouchers make good policy in school districts across the nation.
The other policy case that influences the way in which educators keep schools safe and that was the case announced this week that allows educators to consider drug testing as a more comprehensive policy for ensuring a safe school environment. I think the policy itself will be a hard sell, but again the court has at least given the green light for the debate to continue on what range of measures educators can bring to maintaining a safe learning environment.
And the second one has already been talked about often across the nation and that’s the death penalty case. I’d like to hear more on the federalism implications of what is now unmistakably a narrowing of the range of options for states that want to pursue capital punishment. The court is now unmistakably sending us down a road toward uniformity in the criminal procedures that we bring to that and for me those are two enormous topics of the term.
MARGARET WARNER: Professor Amar, to you. What would you add or do you agree that First Amendment cases and these federalism cases, among others, are the big ones?
AKHIL AMAR: I agree with many of the comments of my colleagues. My big three themes would be as follows: First, the voucher case handed down yesterday. In my opinion, as big a case on religion and education as we’ve had in the last 50 years, and very concretely we now have a road map from the Supreme Court with five Justices all signing on to a single opinion, a road map for what clearly passes constitutional muster.
And maybe in some ways you might think of this as a little bit like Miranda, giving the cops a road map for how they can basically keep a confession and get it introduced in court; or the famous Bakke case, that offered a road map for how higher education could do affirmative action, at least until Bakke is overruled and it may come up in the terms ahead. But those cases are landmark cases in part because they signal to decision makers across the country what you need to do in order to stay on the safe side of the Constitution.
Second, I do agree that it was a very big term for freedom of speech. An act of Congress was struck down, the child– dealing with virtual child pornography. Another act of Congress was struck down that limited the ability of advertisers to advertise certain untested or less than fully tested compound drugs. A ruling just yesterday held that Minnesota could not impose limits on the speech of judicial candidates, candidates for judicial office, calling into question lots of legal ethics and judicial ethics, norms across the country.
And last week we got a case about Jehovah’s witnesses, about basically door-to-door solicitors striking down eight to one a kind of policy that just said before you knock door to door, you need to give your name to the folks at city hall so they can make sure you’re not casing the joint for some burglary. That’s the kind of law that would have been easily upheld in previous years. People like Hugo Black and William Douglas, great defenders of the First Amendment in landmark cases from years past, had no problem with that, so a big term for freedom of speech.
And my third theme is continued disrespect, basically, for Congress, or at least a willingness of the court to really beat up on Congress. Congress had three different laws invalidated last term, the federalism case that Kathleen mentioned and a couple of those First Amendment cases I mentioned. That’s actually better than in recent years where Congress is basically in the last eight years lost on average four or five times, had acts declared unconstitutional. So they did better than in years past but you got to remember that for the first 70 years of our constitution, the Supreme Court only twice struck down acts of Congress. So in the last term, they struck down more acts of Congress than they did in the first 70 years.
MARGARET WARNER: Professor Yoo, what do you think is the message that the court is trying to send to Congress on some of the laws that it is striking down, and also thinking of upholding the states’ rights to enact patients’ bill of rights against the federal employees benefits law. I’m also thinking there were cases involving the ADA, and sort of limiting how the ADA could be applied. Is there some message the court is sending to Congress or is it simply asserting its right to decide whatever Congress does is legit or not?
CHRISTOPHER YOO: I think the court is currently constituted is really committed towards pushing government down closest to the voters as they can. There is a steady thread in the overall scope of the court’s decisions favoring decisions by states and not by the central government.
And I think that part of it is allowing it not just to go to the states but to private individuals, allowing them to make individual decisions about how to order their individual lives. And I think that that is potentially a very important development and it’s common throughout many decisions of the last several terms.
MARGARET WARNER: And it’s fair to say this has been going on for the last several terms?
CHRISTOPHER YOO: Absolutely.
MARGARET WARNER: Would you say that the divisions on this, within the court, are more bitter and more– just more extreme than they are say on free speech cases?
CHRISTOPHER YOO: I think that’s fair to say. One of the most distinctive things about the court as it sits now is that these nine Justices have been together longer than any other nine Justices I think in the entire history of the Supreme Court of the United States.
And they also tend to break along a particular 5-4 line on federalism issues in particular, but on a broad range of issues. In fact, 21 5-4 out of the 76 decisions, one vote swinging it either way suggests the court is very closely divided, but what is really unusual is the stability of the particular coalitions that make up the 5-4s.
In previous years, some judges would see certain issues one way, some issues another way and would you have a constant shifting of coalitions. Here it has been so stable for so long, that it’s almost striking in the way that the jurisprudence is coming out particularly with regard to federalism and to some extent with regard to individual rights.
MARGARET WARNER: Professor Sullivan, do you agree that is the case, the stability, and do you think that’s healthy?
KATHLEEN SULLIVAN: Well, Margaret, first we shouldn’t overstate the fixity of these political divisions. Yes they’re divided 5-4 on church-state, on states rights and so-called sovereign immunity, but we some saw strange bedfellows and flip-flops this term. When it came to drug testing, the geeks as well as the jocks in high schools, which the court held this term, random drug testing of the people in the choir and debate club as well as the football team, you had Justice O’Connor is usually on the conservative side siding the with kids saying they have a privacy right not to be subject to random drug testing in this manner for just joining the choir; whereas, Justice Breyer, who often sides with the liberals, was over on the side of law enforcement saying this is a sensible practical way of deal wealth drug problem in high schools.
Or take the case about judicial speech that said that judges, if they are in a state that has decided to have elections for state judges, a decision that you think is inconsistent with judicial independence in the first place, but if you have elected judges, said the court, judges have to be free to speak and announce their views in judicial elections. That’s the core of political speech, said Justice Kennedy. Well, in that case we had the so-called conservatives supporting the rights of the speakers and the so-called liberals saying there were no First Amendment right here; rather elections were different.
And it might be that that case is a predictor of how the court might break down in the coming challenges of the campaign finance reform acts that have come out of Congress with conservatives saying there has to be freedom of speech in elections and so-called liberals, usually the protectors of freedom of speech, on the other side.
So you don’t want to overstate this. You had 7-2 in the death case that said you can’t be sent to your death without the judgment of a jury rather than just one judge; that you deserved to die in a capital state. We had both liberals and conservatives lining up in that because they thought it was a fundamental freedom either as a matter of due process or a matter of avoiding cruel and unusual punishment.
So although there are some 5-4 coalitions that are hardened, and I agree with your implication, Margaret, that might become unhealthy if it became too hardened, because law is different from politics, but I think we see enough variation in the other cases that we see a court that is really acting as a court and not as another version of a legislature.
MARGARET WARNER: Professor James, let me ask you about the death penalty cases because there were three this term. Do you see the court moving toward actually outlawing or declaring it unconstitutional, or do you think they’re essentially tinkering with the process? How should we interpret these decisions, ins, saying that the mentally retarded cannot be executed; saying that only juries, not judges can impose the death penalty, or that third one involving the man on Death Row whose lawyer had been found to be sleeping through the trial what does this portend?
BERNARD JAMES: Margaret, I’m certain tinkering is going on and I think in the larger sense we’re seeing the Eighth Amendment emerge as one of the three areas that the court has made a commitment to patrolling, to keeping an eye on in effect on a case-by-case basis.
And while the trend now appears to be one towards standardization as it does tinker from case to case and you’ve just mentioned two of the three cases in this term’s decision, I think that the “cruel and unusual punishment” phrase as the framers intended it, has gotten a little out of hand for the Justices and they’re attempting, at least in two ways:
One to keep it anchored as much as possible to historical notions of what the framers believed, while attempting to do almost the impossible, which is to allow some evolution of the notion as states find their own preferences as a matter of policy for capital punishment cases.
As I look back at the term on capital punishment, I see that area, along with the reasonableness notion from the Fourth Amendment and the notion of establishment of religion, being topics to which the court, without regard for its composition, is committed to patrolling to watch exactly how the state policies evolved in that area. I suppose the good about that is that we will always see cases from term to term that will sharpen our sense of what the law permits and what the law requires. But I think it also means that the court will never be able to keep its focus away from it, and will constantly tinker with it in the future.
MARGARET WARNER: Professor Amar, your view of what the death penalty cases portend, if anything?
AKHIL AMAR: My own sense is that it is tinkering at the margins. We don’t really have anyone like Justice Brennan or Justice Marshall who thought that the death penalty across the board was unconstitutional. Justice Blackmun came to that position very, very late in his tenure in the court. I don’t believe we have abolitionists.
We have Justices who are, I think, your phrase is right, sort of tinkering at the margins. The biggest potential change, I think, in the death jurisprudence is that there was a brief reference to world opinion in the Atkins case about capital punishment for the mentally retarded convicts. And if the Supreme Court were to look at world opinion or world practice or European opinion, that could be a thin edge of a very big wedge because of course Europe doesn’t believe in the death penalty at all. It’s basically outlawed in the European Union.
But what they did, apart from just a brief reference in the footnote, what they did is strike down a policy that the overwhelming majority of Americans, even those who favor the death penalty, don’t believe in, that is a death penalty for mentally retarded convicts, only five states out of fifty had, in fact executed known mentally retarded convicts since the issue got sort of framed at a national level in a 1989 case — so 5 out of 50. Most Americans, even those who believe in the death penalty, don’t believe in this.
So I think actually the court was just kicking out the door something that was really on its way out anyway, when it was just a little issue of mentally retarded.
MARGARET WARNER: And, Professor, I’m afraid we’re on our way out but thank you all four very much.