RAY SUAREZ: The justices ended their year yesterday with a landmark ruling on gun rights, one of several decisions that could impact all Americans. Here to give us an overview is NewsHour regular Marcia Coyle of the National Law Journal.
And another year for the books, Marcia. What are the arguments and decisions that really were the highlights of this year?
MARCIA COYLE, National Law Journal: OK, Ray, first, the court disposed of 67 cases with opinions on the merits. These are the highlights, but it’s by no means the entire body of the court’s work.
First, under the broad heading of constitutional decisions — as you mentioned, guns — the court held that the Second Amendment protects an individual right to possess firearms and to use them for lawful purposes, such as self-defense in the home.
Guantanamo Bay, the court, for the third time in four years, rebuffed the Bush administration’s legal arguments about the detainees there. The court held that those detainees have a right to challenge the legality of their detentions in federal court through habeas corpus petitions.
Death penalty, three big decisions. First, the court struck down Louisiana’s law imposing the death penalty for rape of a child. The court said the death penalty should be reserved for the most serious crimes, and that would be crimes that end in the death of the victim.
The court upheld the state of Kentucky’s three-drug lethal injection protocol for carrying out executions. The court held that this protocol did not violate the cruel and unusual punishment clause of the Eighth Amendment. The court, however, did leave the door open to challenges to other lethal injection protocols in other states.
This case also marked the first time Justice Stevens announced that he would find the death penalty unconstitutional in the next appropriate case. He felt that the costs of the death penalty and the fact that it no longer served the purposes for which we have it made it unconstitutional.
And, finally, an international death penalty case. The court held that the Bush administration could not fulfill an international treaty obligation by ordering state courts to review the death penalty — the death sentences and convictions of about 50 Mexican nationals on death row because they were denied access to their consuls after their arrests.
Supreme Court's low-profile term
RAY SUAREZ: Was this a less contentious session, fewer 5-4 decisions?
MARCIA COYLE: It was. There were fewer 5-4. Last term, there were a large number of 5-4 decisions.
We also saw close decisions in other areas. There were important election cases. There was an important First Amendment case involving child pornography. We saw close votes on the issue of punitive damages in the Exxon Valdez spill.
I think that the difference in this term, as compared to last term, in terms of fewer 5-4 rulings, really had a lot to do with the nature of the cases before the court.
In the prior term, we had abortion, school integration. Let's see, we did have death penalty cases. We also had church-state cases.
But in this term, even though cases such as Guantanamo Bay, the Second Amendment, and the death penalty caused controversy, I don't think they bring the same amount of legal, emotional, social, and political baggage that those other cases brought.
RAY SUAREZ: Thanks, Marcia, stay with us.
RAY SUAREZ: Joining us now to discuss the themes and trends that emerged this year are two Supreme Court watchers. Douglas Kmiec is a professor of constitutional law at Pepperdine University's School of Law in Malibu, California.
And Pam Karlan, she's a professor of public interest law at Stanford Law School.
Professor Kmiec, now with this year completed, has a judicial philosophy, has a style emerged for the recent vintage chief, John Roberts?
DOUGLAS KMIEC, Pepperdine University School of Law: Ray, I think it has. The Supreme Court, under Chief Justice Roberts, is a court of lower profile.
As Marcia said, it's a court that took 67 cases and decided on the merits, which is the lowest number of cases since 1953. It's also a court that is taking, as Marcia also indicated, fewer controversial cases, so no abortion case, no affirmative action, no religion, no major speech case.
And the chief justice has adopted a methodology that tries to decide these cases on the narrowest possible grounds and, in particular, tries to resolve them in a way that gives a presumption of validity to the democratic process to the statute, leaving controversial applications for another day.
So I think it's fair to say that the operating methodology of the chief justice is the one he described when he was in his confirmation. He's the umpire. He doesn't want anybody to watch.
RAY SUAREZ: Professor Karlan, do you think that we're seeing now a mark, a stamp of the Roberts court?
PAM KARLAN, Stanford Law School: I don't think it's possible to do that looking simply at one term, especially because, as both Marcia and Doug pointed out, the court is taking very few cases.
This was a term where the court set the table, I think, for a lot of future litigation, in the voter I.D. case, in the guns case, even in the Guantanamo Bay case. The court didn't fully resolve the issues.
And I think those issues are going to be back at the court. And when they come back, I think we'll see the same kinds of divisions and contentiousness that we saw last term, for example, in abortion or in the school desegregation cases.
Major issues to resurface next term
RAY SUAREZ: Professor Karlan, is that a consequence of what you heard Professor Kmiec talk about, trying to settle on the narrowest questions and, in effect, almost guarantee that these issues are going to come back in one form or another?
PAM KARLAN: I think it is. For example, in the guns case, all we know from what the Supreme Court decided was that individuals have a right to possess some kinds of weapons under some circumstances in some places at some times.
But Justice Scalia's opinion for the court didn't even address a very basic question, which is whether the Second Amendment applies to state and local regulations of firearms. I think it's clear the court will hold that when the issue comes back, but it's going to be a while.
The opinion also said, for example, that restrictions on which kinds of people can carry weapons, where they can carry weapons, whether there are licensing restrictions, all of those are still up for grabs.
The same thing in the voter I.D. case. The court didn't say that voter identification laws are always constitutional. It said it would wait to see a so-called "as applied" challenge, where a particular voter comes in and says, "I wasn't able to vote because I didn't have the identification and I couldn't get it."
So I think a lot of these issues are going to be coming back to the court again next term or the term after. I don't think the court has settled these issues in a narrow way.
RAY SUAREZ: Professor Kmiec, do you agree with that analysis, that, in effect, they're not settling anything, because we're going to see these issues in one form or another again?
DOUGLAS KMIEC: Well, I think many of them will come back, Ray, but I do think they are settling things in the sense that they're giving general guidance and approval of the legislative work that's coming to them. And I think that's very important, for the Supreme Court to, in essence, give deference to the legislative branch as a vindication of democracy.
The second that I think is important is that, when they send these cases back, they're sending them to the lower courts, expressing a great deal of confidence in the lower court judges.
And you can't always tell what the lower court will do. The Supreme Court last term had a partial-birth abortion case, which they upheld the congressional statute on its face. And when it came time for Virginia to consider a parallel statute, they struck it down as applied, almost even though the statutes were relatively close.
The fact of the matter is, is that the method that the court has chosen is a good one. More troubling is in these larger cases, like the gun cases, many of us, especially from the conservative perspective, had hoped that originalism as a constitutional theory would give us an objective basis to decide these cases.
Well, here you had two justices, Justice Scalia -- really, the strongest proponent of originalism -- and Justice Stevens in dissent, both relying upon very close readings of history, very close readings of text, and yet coming to night-and-day different conclusions.
That's troubling, that the court has not been able to agree upon a constitutional methodology that, in fact, gives us some real understanding and certainty of results, if we apply that rule consistently from one case to the next.
Justices' unexpected rulings
RAY SUAREZ: Professor Karlan, as you look over the decisions, were there any surprises, either surprising coalitions in majority or dissent, or individual justice's work that you thought, "Hmm, I didn't expect that"?
PAM KARLAN: Well, I guess I didn't expect to see, for example, Justice Stevens' opinion in Baze against Rees, which Marcia mentioned earlier, which is he's come to the conclusion after 30 years on the Supreme Court that the death penalty just doesn't work. And I wouldn't have expected to see that, particularly in that case.
I don't think this was a deeply surprising term, though. The one place where I think there is a little bit of a surprise is after last term, where the court was extremely hostile, I think, to anti-discrimination laws and to employee's rights, it backed off a little bit this term, and it backed off in part because it recognized that precedents that were already on the books suggested that Congress meant for anti-discrimination law to have a much broader sweep than the court had wanted last term.
I did want to say one thing, though, about the democratic process, which is, you know, if you look at the two blockbuster cases at the very end of the term, the guns case and the punitive damages case, those are both cases where the court rejected the outcome of the democratic process.
You know, D.C. had a gun law. And whether you think that law is barred or not by the Second Amendment, the democratic process in the District of Columbia wanted that law.
A jury and lower court judges all thought that Exxon should be held liable for punitive damages in an amount much higher than what the court wanted to permit.
So I do think the court is not generally deferring to the democratic process, but rather is picking and choosing its battles on that.
A glimpse at future cases
RAY SUAREZ: Marcia, are these cases that are now at the circuit level that are bubbling up? Are there issues and cases that are sort of headed right for the Supreme Court's desk that you've seen?
MARCIA COYLE: Well, I think we're going to continue to see, in the employment area, there are many job discrimination cases on the federal courts' dockets. And that's why we continue to see a large number of those in the Supreme Court.
And the court has already slotted for argument in the new term an important pregnancy leave-of-absence-related case under one of our discrimination statutes.
I think, as the professors have pointed out, we are going to see more litigation relating to Guantanamo Bay. There are hundreds of cases -- a couple of hundred of cases in the federal circuit courts here in Washington, D.C., the district court and at the appellate level, and they're going to come back to the Supreme Court, in terms of the kind of procedures that are being used, not only to review a detainee's status, but to try a detainee who's been charged with a crime.
So I think, yes, there are cases bubbling up. And on the gun situation, just today in Chicago, a lawsuit was filed -- it won't immediately get to the Supreme Court -- but it challenges Chicago's gun law. And it raises one of the open questions as to whether the Second Amendment applies to state and local government gun laws.
RAY SUAREZ: Marcia Coyle, professors Karlan and Kmiec, thank you all.
MARCIA COYLE: My pleasure.
PAM KARLAN: Thank you.