06/29/2001 - Updated 10:36 AM ET
High court wraps up high profile term By Joan Biskupic, USA TODAY WASHINGTON — At a benefit dinner a few weeks ago, Supreme Court Justices Anthony Kennedy and Sandra Day O'Connor took part in a mock trial of Shakespeare's King Lear. As O'Connor was announcing the verdict, she teased that "it was suggested that we (turn over) the case to the Florida Supreme Court." There it was: another reminder, however lighthearted, of how deeply the high court continues to be touched by Bush vs. Gore , the divisive 5-4 ruling that settled the presidential election and turned a routine court term into one of the most significant in decades. The conservative-led court's decision Dec. 12 to stop the recounting of presidential ballots in Florida reversed that state's high court and ensured George W. Bush the presidency. It was just one of 80 rulings during the nine-month session that ended Thursday, but it was the case that eclipsed all others, and it shadowed the justices through the term's end. An appearance by conservative Justice Antonin Scalia in Fort Lauderdale last month drew protesters. And at the court this week, the law clerks' annual skit spoofed Bush vs. Gore by comparing it with an episode of TV's Survivor . More important, the ruling put a spotlight on the increasing boldness of a court that only a few years ago seemed reluctant to enter the political fray or play a significant role on the public stage. Through the mid-1990s, Chief Justice William Rehnquist's court was defined by a focus on the narrowest contours of legal disputes. It reversed few precedents, rarely broke new ground and routinely left social problems to be resolved by elected legislators. The Bush vs. Gore ruling was something of an anomaly for a court that has spent more recent years boosting state authority at the federal government's expense. Marching into what many analysts viewed as a state matter, the court's five most conservative justices stopped the recounts favored by Democrat Al Gore in a ruling that critics said was dripping with partisan politics. Viewed another way, however, the decision — or at least the court's willingness to make it — fell in line with its recent tendency to take longer strides in the law, and therefore be more of a player in national affairs. "The biggest thing about Bush vs. Gore ," says Harvard University law professor Richard Fallon, "is that this is a court that regards itself as the most indispensable institution" of government. "It used to be that conservatism corresponded to a position of judicial restraint," says Robert Schapiro, a law professor at Emory University in Atlanta. "But the court has become less deferential to other branches of government, and Bush vs. Gore reflects that." On Capitol Hill this spring, Kennedy told members of a House committee that despite concerns over whether the Supreme Court should inject itself into a state matter, the justices believed that "it was our responsibility" to decide the high-stakes Florida case. Those sentiments were echoed by Justice Clarence Thomas
during the committee hearing on the court's budget: "I was
Notable trends Among the trends that marked this term: The continued dominance of the five most conservative justices. Prevailing most often in the cases that were decided by a single vote and had the broadest impact were Rehnquist, O'Connor, Scalia, Kennedy and Thomas. That bloc repeatedly led rulings that curtailed federal power in favor of the states. It went further than ever in limiting Congress' ability to protect civil rights, ruling in separate cases that states could not be sued for discriminating against disabled workers or for regulations that disproportionately hurt ethnic or racial minorities, such as "English only" policies. In the disabled workers' case, the court's conservative majority wrote off congressional findings attempting to show widespread bias against the disabled. That decision in an Alabama case could affect millions of public workers, but another ruling concerning the disabled might be better known: The court ruled, 7-2, that disabled pro golfer Casey Martin has a right to use a cart in competitions. The conservatives also rejected federal regulators' attempt to preserve isolated wetlands that harbor migratory birds. "It's not that the court loves the states," Yale University
law professor Akhil Amar says in assessing the conservatives'
Despite the solidarity on the right, alliances shifted enough to give the left-leaning justices some victories. The court's more liberal justices — Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — were relegated to dissenting opinions in several of the most significant cases. But the liberals did lead the way in some key rulings, courtesy of support from swing votes O'Connor and Kennedy. One factor was an emerging partnership between O'Connor, a Reagan appointee who hits her 20th anniversary this year, and Breyer, a 1994 appointee of Bill Clinton. Another factor was Kennedy's concern about free-speech protections, which put him in league with the liberals in a decision that Congress violated free-speech guarantees when it prevented legal aid lawyers from challenging welfare restrictions on behalf of indigent clients. On Monday, the liberals prevailed in a ruling that upheld a federal limit on how much political parties can spend when they work with a congressional candidate's campaign. The decision in a Colorado case, backed by O'Connor, gave a boost to current campaign-finance reform efforts by emphasizing Congress' ability to crack down on wealthy interests looking for loopholes so they can give more money to candidates. But generally, when the liberal justices prevail, it is not in any broad area of the law. There is no ground the left can claim as its own, as the right so dominates in questions of states' rights. An air of anxiety Debate on Rehnquist's court "takes place on right-wing turf," Fallon says. "This court doesn't talk very much about human dignity as a ground for rights any more. The cases are focused on technical arguments." An example was a ruling in which the liberals, with O'Connor's help, upheld a heavily black North Carolina voting district challenged by white voters as a racial gerrymander. The court said the state could take race into account — just a little — to preserve a Democratic power base. But the starting point was a framework established by conservatives that makes it difficult for state lawmakers to consider race in redistricting and to consolidate minorities to enhance their political power. Beyond the meat of the term, an air of unpredictability and anxiety hung over the court, triggered by the politically volatile Florida election case that so many legal analysts had predicted the court would refuse to hear. After the court heard the case and ruled for Bush, justices
struggled with the fallout. They were weary and tense with each other,
and as they returned to the regular business of their term they were flooded
with thousands of angry letters.
But for all the criticism, the court did end the election deadlock and, federal judge Richard Posner says in a new book, averted a potential catastrophe. "What exactly is the Supreme Court good for," Posner asks, "if it refuses to examine a likely constitutional error (by the Florida judges) that, if uncorrected, may engender a national crisis?" |