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Supreme Court Wrap

June 27, 2003 at 12:00 AM EDT


MARGARET WARNER: It was an historic term for the court with landmark rulings on affirmative action and a Texas sodomy law issued as the court wrapped up this week. All in all the court handed down 72 rulings addressing wide ranging issues from free speech and states’ rights to privacy and the death penalty.

We get an assessment of the term now from four constitutional law professors: John Yoo of Boalt Hall at the University of California-Berkeley; he once clerked for Justice Thomas; Kimberly Crenshaw of UCLA and Columbia University Law Schools; and Kathleen Sullivan, dean of Stanford University Law School, and we expect to be joined shortly by Doug Kmiec, who is dean of Catholic University Law School, and is stuck in traffic.

John Yoo, beginning with you, as you look at this term as a whole, before we get into all the individual cases, do you see any kind of broad theme?

JOHN YOO: I think this term really underscored again how powerful this court is not just in the world but in the lives of everyday Americans; they decide a case like affirmative action, the rights of gays in society, whether you can look at pornography on the Internet in libraries, the sweep of the decisions is really amazing, and if you think about the three biggest issues in society these days: affirmative action, abortion, and gay rights, they — this court has settled those issues for our society for the next few years at least.

MARGARET WARNER: Kathleen Sullivan, what broad theme do you see?

KATHLEEN SULLIVAN: Well, Margaret, I would suggest that the court is really quite a moderate court or a centrist court, that in fact expresses a great deal of the values expressed elsewhere in society, rather than seeking to change those values. In the landmark decisions upholding affirmative action, as long as it’s not too mechanical a use of race to provide the leaders for future positions in America, the court helped to legalize practices that many institutions of higher education have been involved in for the last generation, and had relied on to produce a much more diverse leadership in our society, and the landmark decisions striking down the Texas sodomy law, the court just legalized and brought cultural legitimacy to the view that many Americans would think ought to be part of our constitutional freedom, and that is that government has no business being in the bedrooms of consenting adults engaged in non-commercial, intimate sexual and loving activities. I would say that the big theme of the court is that it’s a centrist, moderate court that expresses the values of most Americans.

MARGARET WARNER: We have just been joined by Doug Kmiec and we were talking about a broad theme that emerged from this term and whether you saw one and Kathleen Sullivan just said she saw the court as to some degree reflecting the consensus, emerging consensus in American society on some issues. What did you see?

DOUGLAS KMIEC: Well, I do think the court is following the election returns, as they say, and I’m not sure that’s a good thing. One of the things that I think troubles us in the legal profession and in the legal academy is the extent to which this court is willing to set aside precedent. Justice Kennedy was particularly critical of Justice O’Connor on Monday in Michigan affirmative action cases for not following strict scrutiny as it has been applied in the cases before, but then Justice O’Connor could rightly say the same thing to Justice Kennedy on Thursday when he wrote the majority opinion in Lawrence.

MARGARET WARNER: The Texas sodomy case –

DOUGLAS KMIEC: The sodomy case, which basically did not give any meaningful deference to the Texas legislature and the people of Texas and the choices that they made about public morality.

MARGARET WARNER: And, Ms. Crenshaw, Professor Crenshaw, do you see that, a sort of throwing off of precedent, or what theme do you see?

KIMBERLE CRENSHAW: Well, I see a court that decides that they’re off precedent in somewhat unpredictable ways but I also quite frankly see an activist court; this is a court which over the last ten years has more or less overturned a quarter of all the cases that have been overturned in the entire two-century history of the court, so it’s not just precedent that the court is setting aside; it’s also setting aside legislation.

But I think the thing that is most striking for me in this court is that although it’s a moderate conservative court in many ways it positioned itself as a repudiation of the Warren court, both the Grutter decision as well as the Lawrence decision had sounds of “Warrenesque” kinds of aspirations. Justice O’Connor in Grutter talked about…

MARGARET WARNER: Grutter — you mean one of the Michigan — let me just interrupt you -

KIMBERLE CRENSHAW: The Michigan affirmative action case — talked about diversity not solely as a benefit to Michigan Law School but also as a benefit to society at large to open up pathways to leadership and yesterday Justice Kennedy talked about privacy not only simply to limit the government but to prohibit the demeaning message of regulating one’s private sexual intimacy. So these are broad themes that really sound very much like a Warren Court coming out of a very conservative court’s mouth.

MARGARET WARNER: What’s your thought on that, Professor Yoo?

JOHN YOO: I think anyone who thinks this is a conservative court is smoking something, and under Lawrence v. Texas you can probably smoke it pretty soon legally as long as you do it in your own house without hurting anybody because this court has done things which the Warren Court never dreamed of doing and actually established the position of our country on these three significant issues: affirmative action, abortion and gay rights in a way the Warren Court could never have hoped to and never have tried to and Justice Brennan and Marshall never came this close to achieving the results that this court has done, so I really don’t think this is a conservative court at all, despite the fact that seven of the Justices had been appointed by Republicans, it’s not the kind of court conservatives would want.

MARGARET WARNER: So, Kathleen Sullivan, what happened to the conservative court, or are we just focusing on these decisions this week, and there’s a different trend in other cases?

KATHLEEN SULLIVAN: You can see the moderate nature of this court in other areas, Margaret. This year there were no big wins for speakers claiming free speech rights under the First Amendment.

The court instead upheld a cross burning law as long as the cross burning was shown to have been done with an intent to intimidate, so Ku Klux Klanners didn’t have free speech; right-to-lifers lost a free speech case saying that they wanted — in which the court said they couldn’t contribute directly through corporate treasuries to candidates that it was okay to limit campaign speech in that way, and the court also upheld an Internet — an Internet smut filtering law, saying that when the government gives money to public libraries, it’s allowed to tell them that they have to put Internet filters on so that porn or indecent material can’t be accessible to children in those libraries, and they upheld that.

So this is a court that upheld the number of laws claimed to violate free speech, and in response to Professor Yoo, you can have an activist conservative court too. Over the last few years, as Professor Crenshaw pointed out, the court has struck down numerous federal civil rights statutes.

And what was very significant this term is that the court showed that it’s not just reflecting the state’s rights ideology of the secessionist South or the segregationist South that the late Strom Thurmond represented, it’s not just going to stay states’ rights forever; rather, this court, this year, this term, the court upheld for the first time in many of these civil rights cases a provision of the Family Medical Leave Act even if it’s applied against the state of Nevada saying that, yes, Congress may still pass civil rights laws that lead to civil damages actions against the states as long as it’s correcting real discrimination by the states such as the sex discrimination that denied women and others the right to look after ailing family members and children.

So the court has been activist in a conservative direction and Professor Yoo might be disappointed that this term had upheld a civil rights action by Congress, but I think that just shows that the court’s in this to apply the law, to call it as it sees it, and to uphold some federal laws and strike down others, depending on whether they fit the authority in the Constitution for Congress to enforce civil rights.

MARGARET WARNER: Okay. Weigh in this debate, Doug Kmiec. Activist or not, conservative or not?

DOUGLAS KMIEC: Well, I think the word “conservative” has two meanings: It has a political meaning, which I don’t think is the relevant one. The relevant one is do you conserve legal principle, do you conserve legal precedent? So let’s take Dean Sullivan’s proposition about this case dealing with family medical leave. It is a radical shift in direction not because of the outcome. The Rehnquist court had no brief for gender discrimination, no brief for gender stereotype. Indeed, the chief justice writes eloquently about the importance of getting past gender stereotype. The criticism of the case is that it didn’t follow the requirements of the law.

MARGARET WARNER: And just explain, this was a case in which the court ruled that in fact a state could be sued by a worker under this federal law that mandates family and medical leave.

DOUGLAS KMIEC: That’s right. And as Dean Sullivan said, there has been a very strong tendency in the Rehnquist court to promote state sovereignty and to build up the interests of the states as an independent political entity.

MARGARET WARNER: In fact, they’ve called it the Rehnquist revolution.

DOUGLAS KMIEC: They have called it that. But that law’s in place; those precedents are in place, and in order to hold a state liable you have to have a strong evidentiary record that they’ve been discriminating. The problem, Margaret, in these cases is that there was no evidentiary record hardly at all; there was just these generalizations about gender stereotype in a case where Congress was really extending a family benefit, which is a good benefit but had nothing to do with whether or not the state was a discriminator in the area of civil rights.

MARGARET WARNER: Professor Crenshaw, you started this argument but I’m sure you have more to add. What do you think about this, is it really a conservative court or not?

KIMBERLE CRENSHAW: Well, I think that the debate about whether the Rehnquist court is conservative or not might be distorted somewhat when we focus simply on the civil rights cases and the federalism cases. If we expand the frame and talk about the criminal law cases, I think there’s just no question that we’re dealing with a court that is permitting certain things in the criminal process that the Warren Court would probably not have permitted or at least would have done so with significant dissent.

Remember, this is the year where California’s three strikes rules were upheld by the Supreme Court — individuals who stole golf clubs and videotapes for children were basically given life terms. In other states they would have gotten between eighteen months to a few years and the court essentially said that there was no constitutional protection against these kind of grossly disproportionate sentences.

This is also a court that permitted a death penalty defendant who was not given the death penalty because of a hung jury and instead was given a mandated life term. Later he was able to appeal his case. He got a new trial. At that point he was given the death penalty and the court said there was no problem with double jeopardy. So some of the basic criminal law cases I think make the case a little bit better.

But there’s another point that I think does it even more. A lot of these cases are cases where there is no strong liberal voice actually denouncing some of these developments: In cases limiting prisoners’ right to visit with their family, in cases involving the suggestion of race-based rejection of fair housing developments. These were 9-0 decisions, so at least Brennan, Justice Marshall would have sounded the liberal voice. So this is moderate to conservative. This is not a fully balanced court.

MARGARET WARNER: John Yoo, what do you make of that argument, it’s that the fulcrum has shifted, there’s no counterweight on the liberal side to the Scalia, Thomas and to some degree Rehnquist strong avid conservative?

JOHN YOO: I don’t think they need to have one because they won all the cases this year. I mean if they were losing, then you would get liberal voices. Justice O’Connor was the voice of the liberal wing in these cases, and Justice Kennedy was, in all these cases that they won.

MARGARET WARNER: But what about Professor Crenshaw’s point that if you look at, say, the criminal law cases, upholding three strikes, upholding all the Megan’s laws, it wasn’t a great year to be a criminal before the Supreme Court.

JOHN YOO: I think that’s fair. And I think also, the explanation for it, that the court is in a way a mirror of public opinion is fair. I think on that area, the society has to come to a consensus that we’re done expanding criminal procedure rights and we’re going to stop them. I don’t think there’s been a serious retrenchment or rolling back of them. I think it’s just stopped. And I think that’s… the question to ask is: Is the Supreme Court really the body that we want to be interpreting public opinion and enforcing it on the society? What makes these nine, relatively older isolated justices the people we want to make these basic social decisions for us and imposing them on us?

MARGARET WARNER: So, Kathleen Sullivan, briefly, do you think that’s what the court is doing now?

KATHLEEN SULLIVAN: No. The court is finding just as much constitutional basis for a liberty right that encompasses the right to intimate association in the bedroom through the liberty clause and the commitments of the founders as it is in finding a state right against civil rights damages actions against it even in federal court. These are things that the text of the Constitution doesn’t speak to, but the principles of the Constitution do. And the court is not just reflecting public opinion in a vacuum. It is doing it moderately and carefully with reference to the Constitution and its values.

MARGARET WARNER: Your thought on that.

DOUGLAS KMIEC: Well, I wish that was the case. I think the criminal law cases are a bit more mixed. I mean in the last day of the term, the court invalidated a California statute that extended the statute of limitations in child sexual molestation cases, a very hot topic, a very important topic. Hundreds of cases today in California, in Dean Sullivan’s state are being dismissed with the practical consequence of that.

I think the court is sensitive by and large to the legislative process, but it has these notable exceptions, and the notable exceptions dominated this term suggesting that we’ve got a group of people who may not have retired physically, but to some degree they’ve retired intellectually.

They’ve been dealing with each other so long, that they no longer defend the basic precepts and principles of basic doctrines of constitutional law, such as things being reserved to the states, such as health, safety, morals and welfare. Texas may be wrong in their given case; they may be right. We disagree on that. It should be argued not before the Supreme Court of the United States but in the Texas legislature.

MARGARET WARNER: Let me ask you very briefly, John Yoo, the fact that no one has announced retirement yet, do you think that means they all plan to be here next term?

JOHN YOO: I think if no one retires by within a week or two from now, it’ll be until 2006, probably, before you have a retirement.

MARGARET WARNER: Kathleen Sullivan?

KATHLEEN SULLIVAN: No retirements anytime soon.

MARGARET WARNER: And Professor Crenshaw?

KIMBERLE CRENSHAW: I have to demur on that one. I can only presume that if we haven’t heard of a retirement yet, we’re not likely to hear one right away.

MARGARET WARNER: And Professor Kmiec?

DOUGLAS KMIEC: It’s probably unlikely but I think the last cases suggest that the people who are going to be considered are going to be looked at much more carefully on all sides.

MARGARET WARNER: All right, thank you professors all — very interesting. Thanks.