SUPREME COURT WATCH

June 2003
		As the Supreme Court's 2002 term came to a close, the high court marked another important chapter in legal history, handing down opinions on cases testing both decades-old laws as well as the limits of new technology in the public domain. Jan Crawford Greenburg, regular NewsHour analyst and Supreme Court reporter for The Chicago Tribune, and Professor Stephen Wermiel of American University's Law School answer your questions on the high court's procedures and the impact of its latest term.

Online NewsHour Special Report: Supreme Court Watch Forum Introduction Are experts surprised by the outcomes of the Texas sodomy law case and the affirmative action case? Isn't this supposed to be a "conservative" court? What is used to determine when a previous U.S. Supreme Court precedent should be overturned? Is it too optimistic to view recent capital punishment opinions issued by the court as part of a broader trend which will see an ongoing judicial reassessment of the application (and possibly eventually constitutionality) of the death penalty? Justice Scalia wrote that the Texas sodomy ruling threatens state laws that ban same-sex marriage. What is your view on that? Would this be privacy or due process or equal protection? What do you view as the most important opinions from this term? Do you see a widening divide between the voices on the court that may prove interesting to watch as the court enters its next term?     The U.S. Supreme Court The Supreme Court Historical Society The Chicago Tribune American University Law School	Eli Kay from Richmond, Virginia asks: Are experts surprised by the outcomes of the Texas sodomy law case and the affirmative action case? Isn't this supposed to be a "conservative" court? Jan Crawford Greenburg of The Chicago Tribune answers: Lawyers on both sides of the issue were surprised by those historic decisions, because they went much further than anyone had expected. Observers had predicted that Texas would lose and the University of Michigan Law School would win, but no one thought the court would write the decisions so broadly. In the Michigan Law School case, for example, observers predicted that Justice Sandra Day O'Connor -- considered the key swing vote -- would refuse to end all affirmative action. They suggested she would allow universities to consider race, but in a very limited sense. Instead, she enthusiastically embraced the idea of diversity in education. She said that diversity provided important educational benefits and that admissions officers were justified in considering an applicant's race to get a diverse student body. On the sodomy case, I don't know of a single court watcher who thought the court would rule for Texas. The justices did not take that case to uphold the state law. That said, I also don't know of a single court watcher who predicted the court would issue such a dramatic and stirring opinion, one that emphasized that gays and lesbians are "entitled to respect for their private lives" and apologized for the court's 1986 decision upholding a similar Georgia law. When Justice Anthony Kennedy began summarizing his opinion from the bench, several lawyers sitting in the front few rows -- some of whom had fought their entire careers for equal rights for gays and lesbians -- were so overcome that they began crying openly. It was an extraordinary moment. Your question about whether the court is "conservative" is perceptive. This clearly is not a conservative court, although it has prominent conservative justices. Instead, this is a court defined by the two justices in the middle, O'Connor and Kennedy. Not solidly conservative, but also far from liberal, the court is shaped by those two moderates. It's true that the court lacks a liberal giant like we've seen on previous courts. There is no Justice Thurgood Marshall or William Brennan to counter the court's three ardent conservatives: Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. But the six other justices -- four Republican appointees and two Democratic appointees -- have joined forces to achieve results that previous courts with more openly liberal justices never could. Above all, this term proves the dangers of sticking overly simplistic labels to this court. This is not a court that wears the "conservative" label well. Stephen Wermiel of American University Law School answers: I was flabbergasted by the ruling in the Texas sodomy case, Lawrence v. Texas, and so were most other court-watchers that I know. I have been watching the Supreme Court, first as a journalist, and then as a law professor, for 25 years, and I think that was the most unexpected decision I have seen. It was widely assumed that the court would strike down the Texas sodomy law more narrowly, using the Fourteenth Amendment guarantee of "equal protection of the laws," which deals with various forms of discrimination (as Justice O'Connor proposed in her separate opinion). Because the Texas law only prohibited same-sex sodomy, the court might have said the law discriminated on the basis of sexual orientation and served no rational basis. I thought there was no possibility that the court would overrule the 1986 decision, Bowers v. Hardwick, because I could not imagine that there was a fifth vote to be drawn from the court's conservative majority that was prepared to recognize a right to sexual privacy for homosexual consenting adults. As to the affirmative action decisions, the outcome was pretty much what I and many others expected. It seemed unlikely that the court would find it constitutionally necessary to shut down three decades of efforts to achieve diversity in higher education through affirmative action. Since the Bakke decision in 1978, there has been uncertainty about how to achieve diversity in higher education, and critics of affirmative action have exploited that in and out of court to make it seem an illegitimate goal. But with Justice O'Connor as the critical middle or swing vote, I and others expected that she would continue to recognize the same value in diversity that Justice Powell mentioned in the Bakke case. Do these rulings mean this is not a conservative court? I don't think so. Privacy, especially when it does not involve the lightening rod issue of abortion, is not such a clear-cut liberal and conservative fault line issue. Justice Kennedy, who wrote the majority opinion, could plausibly believe as a conservative that society may still regulate many forms of personal activity but that private, consensual sexual activity between adults is not society's business. And remember that the Supreme Court has already knocked out or limited much race-based decision-making outside the field of higher education, especially in government contracting and in the drawing of electoral district maps. And, of course, there are still many other areas involving neither race nor privacy in which the Rehnquist court will leave a pronounced imprint.