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	Matthew Tinning from Washington, D.C. asks: I would be interested in your thoughts regarding the recent capital punishment opinions issued by the court. It seems death penalty opponents have won victories on issues such as racist jury selection procedures (Miller-El) and competent counsel (Wiggins). Is it too optimistic to view these cases as part of a broader trend which will see an ongoing judicial reassessment of the application (and possibly eventually constitutionality) of the death penalty? Also, do you think the issue is likely to be raised in any future confirmation hearing? Jan Crawford Greenburg of The Chicago Tribune answers: You are right that death penalty opponents have won key victories and have been heartened by the court's rulings on the issue in recent terms. Remember that just last year, in the Atkins case discussed above, a deeply divided court ruled 6-3 that the Constitution prohibited the government from executing mentally retarded killers. The court overruled a case that was only 13 years old -- a dramatic and stunning change of course. That and other recent cases show that the Supreme Court indeed is paying heightened attention to the death penalty, with a special focus on the quality of legal representation for capital defendants. Justices O'Connor and Ruth Bader Ginsburg have publicly indicated they are concerned about whether defendants facing a death sentence are adequately represented. O'Connor has suggested that lawyers representing capital defendants be required to meet minimum standards. To that end, the Wiggins case you mentioned was a significant victory. Criminal defense lawyers said the 7-2 decision, with conservative Chief Justice William Rehnquist joining the majority, sent a strong message that the constitutional right to counsel is not something that exists in theory and that lawyers must do the hard work necessary to defend their clients. That said, however, there's absolutely no indication that this court would ever abolish the death penalty. Opponents instead are focusing on making it fairer or by trying to exempt groups of people, such as juveniles. They have appealed to state governors and legislatures to ban the practice. That's not to say the issue would not be raised in any confirmation hearing, particularly since the court has been closely divided on criminal punishment issues. Because of the focus on the death penalty, I'd be quite surprised if more than a couple senators weren't ready with questions. Two new justices could change the result in Atkins, for example. But this issue may not command center stage in a confirmation hearing, unlike, say abortion, the separation of church and state or affirmative action, where just one new justice could make a difference on key issues. Stephen Wermiel of American University Law School answers: I don't think there is a wholesale rethinking of the death penalty on the court. However, I think there is a growing realization among Justices of the following proposition: the various federal habeas corpus laws and Supreme Court decisions interpreting those laws require a degree of precision, accuracy and competence in the legal system that is not reflected at all in the quality of representation available to vast numbers of defendants in death penalty cases. Whether the concerns this proposition raises will lead the court to more than an ad hoc consideration of the circumstances of death penalty cases, I honestly don't know. It seems logical to me that individual Justices would come to realize the impossibility of the system they have helped to create, but I am not known for my predictive track record.