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	The Online NewsHour asks: 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? Jan Crawford Greenburg of The Chicago Tribune answers: The Michigan affirmative action cases and the Texas sodomy case clearly defined this term. Both produced landmark decisions that will have an enormous impact on American life and affect related issues for generations to come. Those decisions reflected the voices of the court's key swing votes, Justices O'Connor and Kennedy. That's nothing new: those two have long shaped major decisions from this court. One interesting thing to watch, however, could come from the conservative wing. Some legal observers have speculated that Justice Scalia, perhaps the court's most fearsome intellect, could find himself a marginalized figure on the court, as his dissents become increasingly harsh and ominous. That suggests the torch of the conservative wing could pass to Justice Thomas, whose opinions also are passionate, but offer more hope of consensus. In the Texas sodomy case, for example, Thomas also dissented, but in a more measured way. He called the law "uncommonly silly" and said he would vote to repeal it if he were in the Texas legislature. But it wasn't his place as a justice to strike it down, he said. Thomas, a deeply private man, also opened up more from the bench this term. When summarizing opinions, for example, he spoke at times in funny, self-deprecating tones. Once, when summarizing a case that produced several different opinions from his colleagues, he cracked that the case showed how effective he was at building consensus. But that could be false modesty: His opinions clearly are written to persuade. Moreover, he has an obviously warm relationship with Justice Stephen Breyer, who sits to his left during oral arguments. Thomas will be a fascinating figure to watch in years to come. Stephen Wermiel of American University Law School answers: I don't want to sound too much like an equivocating law professor, but "important" may depend on what you are measuring. For example, a case that is having surprising, immediate practical impact is one decided on the last day of the term, Stogner v. California, in which the court said the Constitution's prohibition of ex post facto laws means that a state may not extend the statute of limitations to prosecute crimes for which the statute of limitations has already expired. The California law invalidated by the court was intended to allow prosecution of sex crimes long repressed by the victim. But in the short time since the Supreme Court ruling, a number of accused sex offenders have had charges against them dismissed in various parts of California. Moving beyond the practical level, the Texas sodomy decision, Lawrence v. Texas, is truly a profound statement of the need for society to recognize that the intimate relations of gay people are an essential part of basic human dignity. There are some ways -- in its rhetoric, in its discussion of stigma, in its moral force -- that it may stand with Brown v. Board of Education as a statement of individual rights. And the Michigan Law School ruling, Grutter v. Bollinger, goes a long way toward dispelling the doubts raised by affirmative action critics about whether consideration of race is legitimate in higher education admissions; these critics were winning a legal spin battle in the lower courts by calling into question the basic meaning of the Bakke decision which colleges and universities have tried to implement for 25 years. While there is still much work for higher education institutions to do in figuring out what plans are workable and constitutional, hopefully the underlying battle over the very validity of affirmative action is now over.