Supreme Court Wrap
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TERENCE SMITH: We get an assessment of this from four law school professors. Douglas Kmiec is the new dean of the law school at Catholic University. Sheryll Cashin, of Georgetown University Law School was a former clerk to the Supreme Court Justice Thurgood Marshall. Thomas Merrill of Northwestern University Law School; he was the deputy solicitor general during the first Bush administration. And from Walter Dellinger of Duke University; he was the acting solicitor general during the Clinton administration.
Sheryll Cashin, there were 79 decisions this term. And some people look at it as Bush v. Gore and 78 others. What did that ruling tell you about this court?
SHERYLL CASHIN: Terry, if I had to use one word to describe the court for that decision and the whole term, it’s imperial. This is a court that increasingly distrusts all other law-giving institutions in this country to decide critical issues of law that affect everyone else. And the Bush v. Gore opinion was an opinion of that. The court arrogated to itself the power to decide an election — to go against the popular will of the electorate. I ranked this case right up with Plessey v. Ferguson and Dredd-Scott as an ignoble opinion that is a blemish on the court. I think the opinion, itself, in terms of its reasoning was lawless because it announced a principle and said we are only going to apply it in this case. So that is my take on it.
TERENCE SMITH: Right, and that certainly would have marked this term for you. Doug Kmiec, what about you? How do you see it?
DOUGLAS KMIEC: Well, Terry, I see it differently than Sheryll does. I think Bush versus Gore was a fundamental statement of the court of equality; that you can’t count votes unless you have some objective fair measure by which to count them. I think it was an opinion that was very important because it reestablished the notion of the rule of law and I think it was quite frankly an extension of the one person, one vote requirement that has always been in place. And Terry, I think the American public largely has accepted Bush versus Gore because it is understandable in those terms. Sheryll and I grade exams every semester. If we sat down and graded exams without an answer prepared in advance, without an objective measure by which to evaluate ought all of them we would be lost in a hurry. The same was true of the 2000 election without the Supreme Court.
TERENCE SMITH: Well, there are two diametrically opposed views. Walter Dellinger, what is yours, where do you come down on Bush v. Gore?
WALTER DELLINGER: Well, I think regardless of whether Doug or Sheryll is right about the equal protection analysis of the court, the biggest question I have is whether the court was the appropriate institution to decide, and indeed it’s fully in keeping with the pattern of this court to intervene and decide virtually every question for itself that it put aside the idea that it ought to be for Congress to resolve these questions. And I would ask Doug it seems to me there is nothing that there is nothing that the Supreme Court decided that had could not have been appropriately resolved by the Congress of the United States, which is the institution expressly mentioned in Article II of the Constitution as the institution to resolve disputes about electoral votes.
The framers actually thought about this question and said it’s for Congress but this is a court that has low regard for Congress. It’s a court that has no former member of Congress serving on the bench for the first time in our modern American history and I think it just thought that Congress — the Constitution’s institution to resolve this would not have done a very good job for it and the court took it on for itself. Why couldn’t this have been resolved by Congress?
TERENCE SMITH: All right. We’ll get back to that. But, Thomas Merrill, let’s get your view of that decision and this court.
THOMAS MERRILL: Well, I come down somewhat in between my colleagues I think. It was in cautious for the court to plunge into the case when it really didn’t have anything to say by way of a happy resolution. The court discovered an equal protection violation I think properly, but then didn’t have an effective remedy for that violation. And I agree with Walter Dellinger, I think that probably the better course would have been for the court to stay out all together and let Congress resolve the dispute.
TERENCE SMITH: Doug Kmiec, what do you think?
DOUGLAS KMIEC: Well, this is the story of our modern times, Terry. This is not the first time that the people have looked to the Supreme Court to resolve a constitutional question. This is what happened in Watergate. We could have allowed the impeachment process to conclude but the court intervened to rule against President Nixon and his withholding of the tapes. Walter Dellinger makes an excellent point about the 12th Amendment and the Electoral Count Act being available, but seven Justices knew it was their responsibility to enforce the equal protection clause. They said as much. I think the people have more faith in the outcome of that election because they intervened and, by the way, they intervened only after remanding to the state Supreme Court in Florida to give them a second chance, Florida chose not to take it.
TERENCE SMITH: That’s right. All right. Let’s move beyond Bush v. Gore, Sheryll Cashin. Let’s look at the other 78 and tell me what cases strike you as most important and most revealing of this court this term.
SHERYLL CASHIN: Two cases that come from my home state of Alabama are particularly disturbing to me and support this idea of an imperial court that is hostile to civil rights unfortunately. The ADA case, Americans with Disability Act, was profoundly disturbing. You had a court say that despite the fact that Congress went to 50 states over three years to build a record to show that states had been discriminating against people on the basis of disability, they said there wasn’t a sufficient record. And I think — I don’t know how after this case that Congress can use its prerogatives to protect people against discrimination on the part of the state. The other case, the English only language case involving the test for the driver’s license, it’s after this case, nobody who feels they’ve been discriminated against by a federal government fundee, somebody who received federal government funds on the basis of race, sex, religion, they can only bring that case if it’s based on intentional discrimination. They can no longer bring a disparate impact claim. It really sort of takes the power out of the law which congress intended.
TERENCE SMITH: Douglas Kmiec, what strikes you, which case or cases?
DOUGLAS KMIEC: Both of the cases Sheryll mentioned are important, and I would just reiterate the point that I think it’s less imperial, less the supremacy of the court than the primacy of the Constitution — when the court speaks, it speaks in the voice of the text of the Constitution but I think one of the most important cases this term was the good news decision — a case, Terry, that dealt with whether or not a bible club could meet on equal even-handed terms with other groups in a public school. The court said of course it could because the First Amendment was not intended to discriminate against religious speech. It wasn’t intended to make it more difficult to pursue freedom of religion. It was to accommodate religion. This is a case that long-term especially because Justice O’Connor joined the majority, is has serious and positive implications for both faith-based organizations which are being debated in Congress and a school voucher case which is on a very fast track and has been petitioned for certiorari for the court next term.
TERENCE SMITH: Walter Dellinger, when you look at the cases and you look for either important new law or cases that tell you something about this court, what do you, what catches your eye?
WALTER DELLINGER: Well, just first a word that I think Doug is entirely right about the Good News decision, I think it deserves more credit. It’s a wonderful decision. It shows that is this court I think is getting the religion clauses exactly right — very simply that government prayer is bad. Private prayer is good. And religious institutions are fully entitled to equal access to public places of public support. So I agree with Doug. I also agree with Sheryll that the court I think – most salient characteristic is its setting aside of the historic role that the reconstruction Congress after the Civil War gave to future Congresses — and again a part of the court’s theme of taking to itself the enforcement of laws.
Beyond that, I thought, if I need to disclose — there was a case that I argued I think is also of importance. That is a North Carolina redistricting case. I think that is because in part the court finally held back from setting aside state districting laws it took into account any — any consideration of race in creating congressional districts and by a very narrow margin the courts upheld North Carolina’s districts. Had it not done so I think we would have had courts doing most of the redistricting at least in all of the states that had multiracial populations but beyond that the court said that race is not always fatal to a government plan. And I think if the court takes the standard it used in the latest North Carolina case, that race invalidates a government action only where it’s predominant if the government has a very good reason for using some consideration of race it might pave the way for the court to continue to adhere to the Bakke decision permitting some modest use of race in an educational setting.
TERENCE SMITH: Okay. Thomas Merrill, what caught your eye, what were the headlines cases for you?
THOMAS MERRILL: One case I would single out is the tobacco advertising case that was decided the last day of the term. I think it was a decision that had some potentially very unfortunate consequences in the long run. Not sure the court intended the consequences but I think it might come back to haunt us. Last year the court in a divided decision five to four ruled that the federal Food and Drug Agency (Administration) doesn’t have authority to regulate tobacco advertising. They relied on a 1969 statute, the Cigarette Labeling Act in reaching that conclusion that congress hadn’t given the FDA this particular authority. This year the court ruled 5-4 that state and local governments don’t have authority to regulate tobacco advertising — cigarette advertising either based on the same 1969 statute. So the court has now held that a federal agency doesn’t have the authority and the state and local governments don’t have the authority.
So the only entity with legal authority to regulate tobacco advertising, cigarette advertising at least is the Congress and Congress appears to be not in a mood to legislate on this particular subject. The effect of the court’s decision is going to be to push activity more and more toward litigation, toward lawsuits against tobacco companies and toward settlements between attorneys general and the Justice Department, tobacco companies. We’ going to be dealing with the tobacco problem through courts and lawyers settling cases instead of dealing with it through state and local and national legislatures, which is where I think in our democracy, we really ought to be tackling the subject. I don’t think the court is necessarily intended to make tobacco the most deregulated industry in the country but it seems to be having that effect.
TERENCE SMITH: All right. Let me ask each of you then to you sum it up; sum up the term, sum up the court in terms of its political polarity — if that if that is the way you see it. It is a stable court. After all its been the same members for seven years, characterize it for us Sheryll Cashin.
SHERYLL CASHIN: As I said before the court, the same 5-4 majority, the Florida five in Bush v. Gore over the last five years, this court, these five Justices have struck down a number of federal laws. And I think they will continue to do this last year. They said, you can’t bring an action against the states for age discrimination. This year they said you can’t bring an action against the states for disability discrimination. They have also struck down portions of the Violence Against Women Act. I think we’re going to continue to see the theme with the five justices. It’s itself least deferential court toward Congress in American history.
TERENCE SMITH: Douglas Kmiec, your summary?
DOUGLAS KMIEC: Well, I think it was an interesting term. Bush versus Gore is always going to loom largely over this term. But the First Amendment got a substantial boost in this term; the Fourth Amendment privacy emerged as a very important value in the courts decision-making. I think there were some unfortunate decisions but as you said, Terry this is a very balanced court and of those 26, 5-4 decisions about 14 might be said to go to the moderate or conservative side of the balance, another eight or so toward the liberal or progressive side. That tends to suggest this is a court of integrity — an insight that it’s deciding cases on their facts and on the record; by and large I say they acquitted themselves very well this term.
TERENCE SMITH: Walter Dellinger, when you look at the, look at the term, characterize it for us.
WALTER DELLINGER: Well, I almost agree with Doug – I mean, the court is working well as an institution. I think there may never have been a better prepared, more active, more incisive group of justices at oral argument; they are getting the work done on time, the opinions are well reasoned. They are mostly free of unnecessary rancor. That being said I do think it is an extraordinarily interventionist court. It badly needs a Justice like Justice John Harlen, who is willing to defer to the judgment of other institutions. It’s not just Congress, it’s not just Bush versus Gore. They don’t defer to the Professional Golf Association thinking they are better situated than the PGA to decide the true nature of competitive golf. They think they’re better situated than the states to decide what state policies need to be advanced. They just don’t defer to any other institutions and I that think this is a court that would be well served by a grain of humility.
TERENCE SMITH: Thomas Merrill, sum it up for us. Do you see this as the others do, as your colleagues do, as a court that has great confidence in itself?
THOMAS MERRILL: I certainly do. I agree with everything that my colleagues have said on that score. I would say that this is Sandra Day O’Connor’s court. It has been and continues to be — as Doug pointed out, Douglas Kmiec pointed out, these 5-4 decisions, the large number this year are not all conservative decisions about 40 percent of them go in the liberal direction if you define liberal according to the block of justices that usually vote on that side and 60 percent of them led in the conservative direction. And the one person who accounted for more of the shifts than any other is Justice O’Connor. She voted with the majority in 80 percent of the 5-4 decisions. And so, and in seven cases she switched over from a conservative side to the liberal side to make a 5-4 majority. She is really the critical vote that hold the balance of power in this court. And I think that when and if she retires it will be a decisive moment in this court’s history.
TERENCE SMITH: Okay. We’ll watch her and this court as it comes in the future. Thank you all four very much.