Braving the New World

In the final two weeks of the Supreme Court term, which wrapped up yesterday, prior suggestions about Chief Justice John Roberts’ ushering in a new era of broad agreeability proved just a tad premature. Oh, yes, there are new alliances. But on the hot-button cases – the kind reserved for term’s end – they sure don’t extend court-wide. What we’ve seen is Justices Alito and Roberts almost always joining each other, and almost always siding with (if not always wholeheartedly embracing) Justices Antonin Scalia and Clarence Thomas, to form what is fast becoming the Court’s new, hard right flank. Though often a moderating force, Justice Anthony Kennedy usually swings that way, too

Make no mistake: this is changing things. Already. On the numbers alone, as SCOTUS Blog reports, Justice Alito has lined up with Justices Thomas and Scalia far more often thus far than did Justice O’Connor, whom he replaced, and he definitively changed the outcome of at least two big cases that had to be re-argued once he took over. As to the impact of Chief Justice Roberts, he, too, has done little if anything to defy expectations.

The end-of-the-term news isn’t all bad, though, thanks largely to Justice Kennedy, whose sometimes lonely vote, swinging the Court hither and yon, has tamped down the presidential threat to checks and balances, salvaged part of an otherwise scuttled (also thanks to him) voting rights challenge to Tom DeLay-orchestrated gerrymandering in Texas, and, as previously reported, preserved wetlands protections under the Clean Water Act. In case you missed them, here’s a run-down of some of the noteworthy cases decided as the curtain closed on this year’s term. Good news first.

Hamdan v. Rumsfeld: A Stinging Rebuke to the Bush Administration. By now, you’ve all read, heard and undoubtedly talked about this one, the mack-daddy of the term, and on the scope of the president’s commander-in-chief powers, perhaps the mack-daddy of all-time. A five-justice majority said that the president’s military commissions, which he set up unilaterally to try certain Guantanamo detainees, violate U.S. military law and the Geneva Conventions. Justice Kennedy provided a key fifth vote. Justice Alito joined Justices Thomas and Scalia in dissent. Chief Justice Roberts had to recuse himself because it was his decision as a D.C. Circuit judge (which upheld the commissions) that the high court was reviewing.

At its core, the ruling pretty much eviserates the Bush administration's brazen claim that the president can flat-out ignore acts of Congress under some “inherent” authority. Think torture. Think warrantless wiretapping. The twisted legal justifications for those policies are now history. Another significant thing about the ruling is its holding that Common Article 3 of the Geneva Conventions does apply to our treatment of Gitmo and other detainees, something the Bush administration has long denied. What that means is not only that the existing commissions go by the boards, but that any administration policy that violates Common Article 3 – and yes, that includes “coercive interrogation techniques”– is a dead letter.

Hard right conservatives are spinning Hamdan as “judicial tyranny” and a victory for al Qaeda. Nonsense. It is a victory for the rule of law. The commissions will be quickly resurrected, only with Congress’s help and (hopefully) with adequate procedural protections, pursuant to our constitutional design. As Justice Breyer said in his concurrence:

The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’ Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here … Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine – through democratic means – how best to do so. The Constitution places faith in those democratic means. Our Court today simply does the same.

Burlington Northern & Santa Fe Railway v. White: A Civil Rights Victory. In a “welcome instance of common-sense judging,” the Court voted unanimously to preserve broad anti-retaliation protections for workers who lodge discrimination complaints. In order to trigger federal anti-discrimination law, the Court held, retaliation need not involve termination, formal demotion, or other conditions-of-employment moves; rather, it need only be reasonably likely to dissuade a worker from complaining. So now it’s clear that the law covers retaliatory “lateral” job reassignments, shift changes and negative references for other jobs. The decision was a win for all employees, but especially for White, a female railroad worker who was reassigned to a theoretically equivalent, but actually less desirable position after complaining of sexual harassment. Later, after filing her complaint with the EEOC, she was also suspended without pay for 37 days, though the company subsequently admitted mistake and reimbursed her. Justice Alito, while agreeing that White was entitled to win the case on those facts, was the only judge not to sign on to Justice Breyer’s opinion. Perhaps unsurprisingly in view of his ordinarily stingy civil rights rulings on the Third Circuit, he disputed the Court’s reasoning and argued for a standard that would have limited the kinds of cases where workers would enjoy legal protection.

LULAC v. Perry: A Mixed (and Mixed Up) Bag. Remember Tom Delay? Well, he may never again grace the halls of the United States Congress, but the Supreme Court has made sure that his handiwork in the partisan redistricting of Texas is mostly here to stay – or at least until the Texas legislature decides otherwise. In a long, splintered and exceedingly confusing decision, the Court voted to reject Texas Democrats’ argument that constitutional assurances of “one person one vote” prohibit mid-decade redistricting. And although once again unwilling to articulate a standard for over-the-line partisan gerrymandering, the Court, by a much narrower margin, told us this instance of gerrymandering just didn’t meet it, whatever it is.

Together with Justice Kennedy, Justices Scalia, Thomas, Roberts and Alito, also agreed that there was no Voting Rights Act violation in the redrawing of a substantially African-American district. That part of the opinion effectively killed a certain type of claim – a voter influence claim – that voting rights advocates have been using for some time. But not all was lost. In the last part of the case, Justice Kennedy switched sides, joining Justices Stevens, Souter, Ginsburg, and Breyer, to find that a redrawn, heavily Latino south Texas district violated the Voting Rights Act. Over strong disagreement from Chief Justice Roberts, who called the majority’s preservation of Latino voting strength under the Voting Rights Act “a sordid business,” Justice Kennedy admonished state legislators for undermining “the progress of a racial group that has been subject to significant voting-related discrimination and that was becoming increasingly politically active and cohesive.” By reconfiguring the district to protect a Latino Republican, Justice Kennedy found, the State “took away the Latinos’ opportunity [to elect their candidate of choice] because Latinos were about to exercise it.”

Will this decision open the floodgates for mid-decade and aggressively partisan gerrymandering around the country? Whether the future brings ugly partisan warfare, a more gently-stated redistricting boom, or something else entirely will be a game of wait-and-see. If the nation's leading election law experts, like Rick Hasen, can’t predict what’s in store, who’s to know?

Randall v. Sorrell: Precedent Holds on Campaign Finance. In a splintered 6-3 ruling, the Court largely hewed to a landmark, 30 year-old precedent and found unconstitutional a Vermont law that limited both the amount that candidates for state office could spend on their campaigns and the amount that individuals, organizations, and parties could contribute to campaigns. Though there was no majority opinion, Justices Roberts and Alito joined Justice Breyer in ruling that the expenditure limits violate free speech guarantees and that the contribution limits are so low that they burden the democratic process by precluding challengers from effectively campaigning against incumbents. Unlike Justices Scalia and Thomas, who would have overruled precedent and found that all contribution (and expenditure) limits are always unconstitutional, Justices Breyer, Roberts and Alito said that contribution limits may sometimes be acceptable to prevent corruption.

Criminal Cases: If Nothing Else, the Sixth Amendment Lives. No one should be surprised if the Roberts Court – and our two newest justices, in particular – eat into the provisions of the Bill of Rights that protect the accused. And no one should be surprised that that’s already begun. But the Sixth Amendment, which safeguards the right to counsel and the right to confront adverse witnesses, just received a boost. In one 5-4 ruling, where Justice Scalia joined Justices Stevens, Souter, Breyer and Ginsburg to form a majority, the Court said that no set of circumstances compromises a person’s right to have the paid lawyer of his choice (U.S. v. Gonzalez-Lopez). Justice Alito wrote the four-member dissent. In another case, which is of immense practical significance to criminal courts country-wide, a nearly unanimous Court said that unless a witness’s out-of-court statement is made in the midst of an emergency, it cannot be used against a defendant in court (Davis v. Washington).

Criminal defendants did not fare so well in the other biggies decided the past two weeks. By a narrow margin, the Court found constitutional the State of Arizona’s restrictive definition of insanity, as well as its rule barring criminal defendants from using psychiatric evidence short of insanity to show that they didn’t have the “guilty mind” necessary for conviction (Clark v. Arizona). Other rulings raise the question whether the Court is embarking on a course of recognizing rights without remedies – toothless rights, that is. In one 5-4 decision, the Court knocked down a centuries-old privacy protection, holding that a criminal trial court should not exclude evidence obtained when police violate the Fourth Amendment requirement that police “knock and announce” before entering someone’s home with a warrant. (Hudson v. Michigan). In another close decision, the Court said that even if the Vienna Convention gives arrested foreigners a judicially-enforceable right to consult with their U.S. consulate, violations of that right may not be remedied by the exclusion of evidence (Sanchez-Llamas v. Oregon).

In Kansas v. Marsh, the Court ruled, also 5-4, that states can require imposition of the death penalty when the jury finds that the aggravating circumstances supporting the punishment and the mitigating circumstances cutting against it are in equal balance. What proved remarkable about an otherwise expected result is the unbridgeable chasm that has emerged between the majority and the dissenters on the issue of capital punishment. The dissenters call the Kansas law which the majority upheld "morally absurd" and “obtuse.” And by suggesting that the spate of death row exonerations in recent years bolstered their position, they prompted an angry screed from Justice Scalia, who pooh-poohed academic studies about exonerations, embraced hotly-contested countervailing ones, and exuded all-around contempt for anything and everything that casts doubt on the efficacy of capital punishment. For a justice who regularly accuses his colleagues of letting their personal opinions interfere with their judging, his concurrence is really ... something else.

With the lone exception of the out-of-court statements decision, Chief Justice Roberts and Justice Alito ruled in favor of the government and against the accused in each of these criminal cases.