Supreme Court Decisions
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MARGARET WARNER: And joining us first to pinpoint some of the highlights of this term is our regular court-watcher, Jan Crawford Greenburg of the Chicago Tribune.
Jan, you’ve been covering this court for more than 10 years. What are the really — were there were stand — first of all, how do you characterize the term? Was it a standout term; were there significant cases in really significant areas of the law?
JAN CRAWFORD GREENBURG: This was not what we refer to as one of those blockbuster terms where the court hands down a number of significant decisions that have a sweeping impact on American life, the civil liberties decisions that we talk about for years and years to come.
But there were a number of significant and important decisions in several areas of the law. The court ruled on several important criminal law cases earlier in the term, and it had a very important decision that said that the federal sentencing guidelines no longer were mandatory. That will affect every federal sentence that is handed down in this country.
The court looked at the death penalty this term. It’s grappled with the death penalty in previous terms. It says that juveniles, people who murder, who are under 18, can no longer be executed, that that constitutes cruel and unusual punishment. In other death penalty cases it said it’s going to overturn a death penalty in a Texas case because there they said prosecutors unfairly excluded African-Americans for the jury, sending a strong American to lower courts that the process in death penalty trials should be fair.
MARGARET WARNER: How about in an ongoing theme for the (William) Rehnquist court, which had to do with federalism, federal versus state power?
JAN CRAWFORD GREENBURG: There was a very anxiously-awaited and closely watched term with fascinating facts involving whether the federal government could prosecute people for using marijuana for medical reasons even if the states thought that that should be okay.
The court said the federal government did have a role. That curbs some of their previous decision where they have sided with the states and suggests that perhaps there are limits to the court’s rulings in those cases.
MARGARET WARNER: And how about on the sort of private property, economic rights?
JAN CRAWFORD GREENBURG: A big, big term for property rights, too. Of course, in one case, the Justices said that the government could come in and condemn your property, take your private property, even for private economic redevelopment projects, that that was not unconstitutional.
The court also took up a very important intellectual property case, property that’s created in our head. And in that case, it sided with the entertainment industry and said that software services could be held liable if they encourage other people to violate their copyrights.
MARGARET WARNER: And of course we know that Justice Rehnquist, the Chief Justice, was ill for most of the term. How — did it cast a pall over the court? How much did he participate?
JAN CRAWFORD GREENBURG: Well, in many ways, this was a term very much defined by the future of the Chief Justice. He announced in late October that he was suffering from thyroid cancer. He missed five months of arguments. But he came back in March, he participated in these cases, and he ran the show for the rest of the term.
MARGARET WARNER: All right. Stay right there.
And now for insights and analysis of this term we’re joined by two constitutional law professors, Douglas Kmiec of Pepperdine Law School, and Laurence Tribe of Harvard Law School. And welcome back to you both.
Professor Kmiec, let me begin with you. What stands out for you, what jumps out at you sort of broadly thematically, when you look at these decisions taken as a whole?
DOUGLAS KMIEC: Margaret, I think if I was a member of the general public, I’d be both startled and distressed by some of the cases this term. I think it’s very distressing to see the result in the Kilo case, the case dealing with the taking private property for other private uses. I think that is an opinion that most people would find quite distressing.
I think the opinion in (Gonzalez v.) Raiche that Jan just mentioned, the federalism case, where there’s no discernible connection to interstate commerce, and yet the federal government presumes to say that a woman with a brain tumor can’t receive medical treatment from her doctor pursuant to the authorization of state law.
MARGARET WARNER: That’s the medical marijuana case.
DOUGLAS KMIEC: That’s the medical marijuana case.
There are other troubling cases. Yesterday’s decision in a case where a woman who had received a restraining order and asked the police multiple times to help her when her abusive husband, who was the subject of the restraining order, had kidnapped their children and then constantly refused this help, and the children, tragically, were murder, asked for relief under the civil rights statutes and was denied that relief.
Each of these cases, the diminution of property, the diminution of the ability of states to provide separate authority, and the insensitivity to that due process claim, I think, is a distressing outcome for this term.
MARGARET WARNER: Professor Tribe, did you see it that way, diminution of property rights, diminution of state authority, and did you find it troubling?
LAURENCE TRIBE: I found, certainly, the last case, the case involving the temporary restraining order very troubling, and it represented a case in which Justice (Stephen) Breyer in dissent, I think rightly said that the majority is allowing its adherence to rigid formulas and to abstractions to overcome its sense of judgment, and its ability to read an ambiguous constitutional document in a way that is sensitive to human values.
But as to the other two examples that Doug Kmiec gave, and I respect him enormously — he and I are friends, although we quite often disagree — as to those two I think what the court did was, although distressing to the public and although in policy terms distressing to me — that is, I certainly sympathize a lot more with the woman who wanted and needed to take medical marijuana than I did with government prosecutors; I certainly sympathized more with the homeowner than I did with New London, Connecticut, that wanted to take the home for broader uses.
I think in those cases, what the court was doing, the majority of the court, was recognizing the limits of some of the more extreme elements of what had been the conservative revolution; the revolution that would have limited national legislative authority by reading the commerce power of Congress almost as narrowly as the court had prior to 1937.
That’s why even Justice (Antonin) Scalia joined the majority opinion saying that Congress had power, whether wise or not, to deal with the medical marijuana situation, and not to make an exception, and I think that is why the majority opinion of Justice Stephens ultimately prevailed in the economic area, saying that if the local government genuinely has a comprehensive plan under which property can contribute much more value in — as part of a redevelopment project, then the court is not going to second guess that judgment.
MARGARET WARNER: So, Professor Kmiec, let’s talk about this revolution, because I think it was yesterday Legal Times ran a headline assessing the term, and the Ten Commandments cases hadn’t even come out when it was written — and the headline was “The Revolution on Hold.”
Do you think you can look at this term and really say that the Rehnquist revolution, the sort of federalism revolution, states power revolution was put on hold?
DOUGLAS KMIEC: Well, I think Professor Tribe and I have both had long conversations about this, and he’s recently written an eloquent letter about how fractured the methods of constitutional interpretation have become and how they have confused a number of doctrinal areas.
Let’s take the Ten Commandments cases, Margaret. To issue on the same day two five-to-four opinions that basically say one display of Ten Commandments is okay and the other is not is not exactly to win any prizes for clarity. It might as well come down to the fact that the granite monument weighs too much to move and the plaques can be taken off the wall. The seriousness and the importance of religious freedom in our Constitution deserves better than that. So to the extent that the court was unable to articulate itself more clearly, in a doctrinal way, in that case, suggests a type of failure.
I also think in the other cases that we mentioned, I think the unfortunate illness of the Chief Justice did — that Jan mentioned before — manifested itself. It’s often said the chief doesn’t have a great many special powers, but he does have influence. He sits in that chair in the internal conferences that begins the discussion, and when your outcome depends on a narrow five-to-four opinion, and you’re not in that chair to start that discussion or to persuade, you tend to lose some of your fellow Justices, like Justice (Anthony) Kennedy, and even on occasion, Justice Scalia.
And there’s a real problems here in terms of method. There was a debate in yesterday’s religion cases about what’s the appropriate way to interpret the Constitution, on the basis of its original understanding or on the basis of greater latitude that contemplates words in a broader focus. And this was a debate between Justice (John Paul) Stevens and Scalia, and so long as that remains unsettled, any revolution in any particular direction is going to seem somewhat without compass.
MARGARET WARNER: Professor Tribe, respond on both those points. One, did you see a court without compass? And to what degree did you sense that Justice Rehnquist in fact was not exerting the same kind of influence and sway that he had earlier as Chief Justice?
LAURENCE TRIBE: Well, I think the absence of a compass has been clear for a number of years, and I don’t see any great change there, except that the fractures within the court, the divisions, are deepening rather narrowing.
I think statistically, it doesn’t seem the illness of the Chief Justice made a difference to the outcomes. It does, undoubtedly, make a difference to the atmosphere, but, unfortunately, or fortunately — depending on your view of it — the court is now run very much like nine separate little law firms, and one of the complaints that many people have is that there’s genuinely little dialogue; in the conferences of the court, for example, they announce their reasons and they vote, but there isn’t much persuasion back and forth. That occurs largely by e-mail and on paper.
It seeps to me that in the religion cases in particular, it would be lovely to have a formulaic solution, but as several of the Justices, especially Justice Breyer pointed out — and as the Chief Justice at least noted in his separate opinion — the two religion clauses create a very deep tension. We are, on the one hand, a religious nation. On the other hand, we’re a nation that recognizes for the government to endorse religion may endanger religious liberty.
What’s remarkable about the two cases involving the Ten Commandments is that eight of the nine Justices actually took the view that they should be decided the same way. Except those eight divided, four thought they should be decided to remove, four the other way. Justice Breyer I think saw the necessary point that no formula can capture the very contextual fact that sometimes the Ten Commandments can be displayed as a religious part of history. Other times it’s very clear that the message sent is the message about God and one God. And those messages, if they’re really different, register differently on the seismic sort of graph in terms of how you balance the two constitutional values involved.
MARGARET WARNER: Let me ask Jan a quick question. Any buzz, informed buzz on the court about Rehnquist’s plans?
JAN CRAWFORD GREENBURG: Margaret, that’s the big question now, in the White House, on Capitol Hill, and even in the Supreme Court, the Justices yesterday looked down to the center seat to see if he was going to make an announcement. He didn’t; so now we wait.
MARGARET WARNER: Jan Crawford Greenburg, and Professors Kmiec and Tribe, thank you all three.