Split Decisions

Looking back at Term 2000

By Jeff Bleich, Kelly Klaus and Deborah Pearlstein

This 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 nor predictable.

Although 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 election case.

After 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 power.

With 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.

Bush v. Gore aside, the Court's 2000 term lacked the headline-grabbing cases of the term that preceded it: no abortion, no Boy Scouts, not even nude dancing. Indeed, there was only a single major constitutional case decided this term that broke along the Bush v. Gore split, and it was perhaps the least surprising case of the term. In Board of Trustees of the University of Alabama v. Garrett - another in a series of 11th Amendment sovereign immunity cases - the Court rejected a federal assertion of power to subject states to suit. In an opinion by Chief Justice Rehnquist on what has become a signature issue, the Court invalidated part of yet another federal statute by holding that state employees could not sue states for damages for violations of the Americans with Disabilities Act. While recognizing that Congress had in fact intended to subject states to suit under the ADA, the Court found that the statute lacked a sufficiently detailed legislative record that could demonstrate that disability-related discrimination by states was a problem of national significance justifying Congress' exercise of power under the 14th Amendment.

While 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.

Justice 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.

The 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.

This 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.

Finally, 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.

Justice 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 judgment.

As has often been noted, both Justices O'Connor and Kennedy have periodically departed from opinions authored by Rehnquist, Scalia and Thomas to craft their own concurrences or - on occasion - join the other four justices to make a majority. This term was no exception. In Legal Services Corp. v. Velazquez, Kennedy led a bare majority (of Stevens, Souter, Ginsburg and Breyer) in striking down restrictions on legal aid lawyers' ability to challenge or amend existing welfare laws. This, the Court said, amounted to a speech restriction that violated the First Amendment. Kennedy likewise provided the deciding vote in a pair of immigration cases (joining Justice Stevens' majorities) that sharply limited Congress's ability to preclude judicial review of deportation decisions. INS v. St. Cyr and Calcano-Martinez v. INS.

In 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.'

O'Connor 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.

In 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.

The 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.

But 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.'

Scalia 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.'

For months the 'buzz' among Supreme Court watchers has concerned which justice might next retire. For those who have assumed that the Bush v. Gore line-up is par for the ideological course, a conservative Bush appointee to replace a member of the Bush Five would not alter the Court's jurisprudence. However, given this Court's variety of shifting alliances - in vivid evidence this term - replacing almost any justice with an unbending and ideological conservative jurist could alter the result in a number of cases. This term is thus a sound reminder that the picture of the Court as a fractured institution with predictable and entrenched alliances is exaggerated.

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.


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.

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