Looking back at Term 2000
By Jeff Bleich, Kelly Klaus and Deborah Pearlstein
has been the year for closely divided government. From the 2000 presidential
election, which was a virtual tie, to the U.S. Senate, which was temporarily
split 50-50 for the first time ever, America's political institutions
reflect the voting of an evenly divided public. We were thus recently
reminded that for most states in our electoral college system, no matter
how closely split the vote, the rule of counting is winner-takes-all.
So too with the U.S. Supreme Court. Most famously with Bush v. Gore,
the media this term has focused on the dramatic effect that a single vote
on the closely divided Rehnquist Court has made in determining the law
of the land; indeed, 26 of the Court's 79 decisions this term - fully
a third - were decided by just one vote. Nevertheless, a peek behind the
numbers reveals that the Court's close divisions are neither unambiguous
several high-profile 5-4 'left-right' splits did occur this
term, not all of them fell in favor of the 'Bush v. Gore Five'
- Justices O'Connor, Scalia, Kennedy, Thomas and Chief Justice Rehnquist.
In a number of leading cases, a justice or two in the middle 'swung'
toward the ideological left, producing important rulings on voting rights,
immigration and campaign finance law. In other cases, a 'liberal'
justice would create a majority for the conservative wing; for example,
this term Justice Souter supplied the critical fifth vote upholding the
right of police officers to arrest and confine people for not wearing
seatbelts, even though that crime is punishable only by a fine. Some of
the 5-4 splits defied ideological explanation altogether. Justice Scalia,
for example, led a five-member majority in upholding the privacy rights
of people against police monitoring their homes (with thermal image scans),
while Justice Stevens led the dissent in that case - insisting that the
scan 'did not invade any constitutionally protected interest in privacy.'
Perhaps most telling, despite the emphasis on closely divided cases, fully
half of the Court's decisions this term were unanimous, including
the 9-0 decision to remand to the Florida Supreme Court in the first presidential
Bush v. Gore, and several other 5-4 decisions that followed, some
Court pundits concluded that the Court's lock-step lineup of right and
left had damaged public faith that the institution was a non-political,
neutral arbiter of the Constitution. Others sought a pre-confirmation
battle pitting conservative senators against the now Democrat-controlled
Senate Judiciary Committee over whether conservative nominees would even
reach the Senate floor. Claims that the current Court bases decisions
on political ideology caused at least one senator (Charles Schumer of
New York) to announce that he will from now on make ideology a central
criterion in evaluating judicial nominees. A similar premise led a leading
constitutional scholar (Bruce Ackerman of Yale) to urge Democrats to vote
down any Bush nominee to the Supreme Court because of the Court's own
role (for Ackerman, an illegitimate one) in granting Bush the appointment
no resignations forthcoming by term's end - and 2002 clerkship interviews
by all of the justices now under way or already complete - guesses are
now that the much-anticipated confirmation battle will have to wait for
another year. But given the stakes of the battle at some point certain
to unfold, it is worth taking a closer look at who on the Court actually
did what in the 78 cases this term that didn't decide a national election.
UP THE USUAL SUSPECTS
the Bush v. Gore line-up thus appeared in few constitutional cases,
that split did decide a number of statutory cases with great practical
importance for plaintiffs seeking access to federal courts. In Circuit
City Stores v. Adams, the Court held that the Federal Arbitration
Act applies to most contracts of employment, thereby allowing most employers
to avoid court litigation by hiring employees subject to arbitration clauses.
The Court's reasoning went beyond the act's language, reflecting divisions
within the Court over the meaning of 'interstate commerce.'
Originally enacted before the New Deal, the act refers most disputes involving
contracts with arbitration clauses to private-judging panels, with only
limited review in federal court. Its only exemption is for 'contracts
of employment of seamen, railroad employees, or any other class of workers
engaged in foreign or interstate commerce.' Construing the clause
'other class of workers engaged in foreign or interstate commerce'
to mean employees like 'seamen' and 'railroad employees,'
Justice Kennedy wrote that the act exempted only contracts of 'transportation
workers.' Thus, the vast majority of other employment contracts are
covered, allowing employers to avoid court litigation (and jury trials)
by including arbitration provisions in their workers' contracts.
Souter's four-member dissent argued that the act's exemption for employees
engaged in 'interstate commerce' was intended to extend to the
limits of Congress's power under the Commerce Clause. Although the Court
had construed that power narrowly when Congress passed the act in 1925,
the Court has since interpreted the commerce power more broadly to cover
most commercial activities having any substantial effect on interstate
commerce. The dissenters faulted the Court for not construing the exemption
in accordance with the more modern meaning of congressional commerce power.
Court was likewise split in Alexander v. Sandoval, a significant
civil rights case. The Court held that individuals who think they have
been discriminated against because of a facially neutral policy (i.e.,
a rule having a 'disparate impact') may not bring a private
suit under Title VI of the Civil Rights Act of 1964. Title VI prohibits
discrimination by entities receiving federal funds. The Court had previously
read the statute to allow individuals to sue for damages for intentional
discrimination. The Justice Department's regulations went further,
providing that individuals could sue for damages if the challenged practice
had a discriminatory effect. Writing for the 5-4 majority, Justice
Scalia concluded that no congressional provision gave private individuals
the right to sue for relief that was broader than that allowed on the
face of the statute; thus these regulations could not be read to allow
plaintiffs to recover damages for conduct that the statute itself permits.
Although Congress passed Title VI during the heyday of so-called 'implied
rights of action,' Justice Scalia refused to read into the statute
a presumption that implied legal claims could sweep more broadly than
the statute's text.
time Justice Stevens wrote for the four dissenters. He faulted the majority
for reaching a result contrary to that adopted by every federal circuit
court to consider the issue, and said that, as in other cases dealing
with a statute passed when the Court was implying rights of action, the
Court should have presumed that the 1964 Congress was aware of and acquiesced
in the possibility that individuals could bring claims that the statute
did not facially authorize but that furthered its underlying purposes.
the same majority prevailed in Buckhannon Board & Care Home v.
West Virginia Dept. of Health & Human Resources, which concerned
when losing parties must pay their adversaries' attorneys fees under certain
federal statutes. The Court held that federal fee-shifting statutes apply
only where a prevailing party obtains relief from a court. The
majority of circuits had held that a party can 'prevail' when
its litigation serves as the catalyst for a voluntary change in the opposing
party's conduct: for example, when a government entity stops a bad practice
after the practice is challenged in a lawsuit. Chief Justice Rehnquist's
majority, however, held that without the judicial 'imprimatur'
on that changed conduct, e.g., a judgment or a Court-approved consent
decree, there was no statutory basis for reversing the 'American
rule' that both sides pay their own fees.
Ginsburg, who again this term emphasized procedural matters, felt strongly
enough about the issue to read her dissent from the bench. Ginsburg, writing
for the four dissenters, argued that the Court's own precedents had endorsed
a 'catalytic' theory of relief, including Justice Scalia's own
view that '[a]t the end of the rainbow lies not a judgment, but some
action (or cessation of action) by the defendant.' (Scalia wrote
a concurring opinion in this case to say that his prior writing was 'ill-considered
dicta.') Ginsburg also argued that the majority's holding was bad
policy, because it gave defendants (and particularly governmental defendants)
an incentive to drag out litigation - thereby increasing the litigation
expenses to plaintiffs - and then reverse their policies on the eve of
THE BUSH BOUNDARIES
Hunt v. Cromartie,
it was O'Connor's turn to switch sides - and, in a sense, to come full
circle - on voting rights. Eight years ago, in Shaw v. Reno, O'Connor
wrote the landmark decision holding that electoral districts cannot be
drawn on the basis of race. The party names had changed, but Hunt was
the same case, concerning the same North Carolina district, at issue in
Shaw. After trial and retrial, O'Connor this time around joined Justice
Breyer's 5-4 majority, which rejected the district court's conclusion
that race was the predominant factor in drawing the district. Whereas
Shaw had spoken of the need to safeguard against political 'apartheid'
in district line-drawing, Hunt spoke of the need for deference
to the legislative process where race correlates highly with political-party
affiliation. Justice Thomas, writing for the four dissenters, accused
the majority of second-guessing the district court's factual findings
and making an inappropriate 'foray into the minutiae of the record.'
likewise sided with the Court's left-leaning wing in Federal Election
Comm'n v. Colorado Republican Federal Campaign Comm., which upheld
limits on the amount of money political parties may spend 'in coordination'
with congressional candidates. The decision could turn out to be pivotal
for current efforts to ban so-called 'soft money' contributions
to political parties; it concludes that the political parties themselves
can be 'conduits' for potential corruption, as individuals barred
by making large contributions to candidates directly can funnel that money
to the party apparatus instead.
two significant constitutional cases involving the rights of criminal
defendants, both O'Connor and Kennedy turned toward the relative left.
In Indianapolis v. Edmond, O'Connor (writing for six) held that
a vehicle checkpoint program instituted specifically to stop drug trafficking
violated the Fourth Amendment. Although the Court had previously allowed
roadside searches for purposes not strictly related to law enforcement
- checking for driver sobriety, for example - O'Connor emphasized that
the Indianapolis program had been specifically set up to find evidence
of ordinary criminal wrongdoing. And in Ferguson v. Charleston,
O'Connor and Kennedy joined in a 6-3 decision holding unconstitutional
a city hospital's program of testing expectant mothers for drug use and
then using positive results to steer women into drug-treatment programs.
Justice Stevens' opinion for the five-justice majority (Kennedy concurred
separately) emphasized that the Court had never approved un-consented-to
drug testing for the very purpose of enforcing the criminal law. To the
contrary, Stevens said, the 'special needs' the government had
urged (and the Court had credited) in the earlier cases were distinct
from aiding the police.
same line-up prevailed in Bartnicki v. Vopper, which arose when
a radio station broadcast an illegally intercepted cellular phone conversation
that had been mailed to the station. The recording contained a union representative
in the midst of a bitter teachers strike saying he was prepared to 'go
to [the school board representatives'] homes,' and 'blow off
their front porches.' The Court held 6-3 that the First Amendment
barred punishing the radio station for playing the tape. But while Justice
Stevens' opinion for a plurality of four spoke of requiring a governmental
interest of 'the highest order' to punish what was truthful
speech, Justice Breyer's concurrence (joined by O'Connor) arguably contained
the holding of the Court. That opinion sounded an awful lot more like
Chief Justice Rehnquist's dissent (for himself, Scalia and Thomas), and
instructed that the Court should not apply 'strict scrutiny'
to this sort of speech restriction, because of the competing speech interests
on both sides of the case. In particular, Breyer noted that while the
radio station had a First Amendment interest in broadcasting true speech,
phone users also have an interest in communicating via new technologies
without fear that their private expressions will be exposed to the world.
(Breyer illustrated this point by referring to the public dissemination
of the (in)famous Pamela Anderson-Tommy Lee sex video.) Breyer ruled for
the radio station in this case only because it had acted lawfully in receiving
the tape and because the tape contained threats of physical violence.
some of the term's most interesting cases were undoubtedly those, like
Atwater (the seatbelt case), that bucked the conventional wisdom
altogether. The most striking of these was Kyllo v. United States,
which found Justice Scalia leading the improbable roster of Souter, Thomas,
Ginbsburg and Breyer, in holding that the government violated the Fourth
Amendment rights of a homeowner by using a thermal scanner to measure
the heat coming from his 'at home' marijuana-growing operation.
Reciting the adage that 'a man's home is his castle,' and that
'the lady of the house' should be able to 'take her daily
sauna and bath' in peace, Scalia wrote that government cannot rely
on sophisticated and uncommonly possessed devices to discover the private
facts of what is going on in the house. Justice Stevens then led the dissenters
(Rehnquist, O'Connor and Kennedy) in saying that people have a far lower
expectation of privacy in what can be detected 'off the wall'
rather than 'through the wall.'
and Thomas also sided with the criminal defendant in Rogers v. Tennessee
- albeit in dissent. The majority held that a judge's refusal to follow
the common law 'year and a day rule' - by which someone could
not be charged with murder if the victim took longer than a year to die
- did not violate due process. Accusing the majority of creating a 'constitution
that only a judge could love,' Scalia concluded, understatedly, that
the majority's analysis violated all conceptions of the judicial role
'since Blackstone's time.'
By putting aside categorical labels and focusing on substantive areas of law, pundits and political professionals of all stripes could help clarify the much-anticipated confirmation debate. Kennedy continues to skew left in protecting First Amendment speech; O'Connor continues to wax to and fro on issues of race in America; and even Scalia is repeatedly drawn to support claims by criminal defendants when his usual commitment to history-based constitutional interpretation compels him to do so. Indeed, most every member of this Court has at some point in recent years proven Laurence Tribe's rule that constitutional space warps when confronted by new technology (be they cell phones, thermal scanners or cable TV). The 'swing' difference thus remains important for an identifiable set of issues, not all of which make it on to the docket every term: the allocation of power, state and federal, legislative and judicial; the ongoing saga of reproductive rights; and the future of religion and affirmative action in education. The Court's unpredictable and widening center - now fairly including not only O'Connor and Kennedy, but also Souter and Breyer - holds the balance of power on most of these issues. And it ensures that predicting the impact of the next appointee on future 5-4 splits will not be as simple as the Gore Left vs. the Bush Right.
ABOUT THE AUTHORS
The authors are litigators at Munger Tolles & Olson in San Francisco. Bleich clerked for Chief Justice Rehnquist in 1990 and teaches constitutional law at Boalt Hall. Klaus clerked for Justice Kennedy in 1995 and has taught judicial decision-making at Stanford. Pearlstein clerked for Justice Stevens in 1999. Bleich and Klaus co-authored a brief on behalf of the ABA in this term's INS v. St. Cyr.