Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2005

A Practical Era
The beginning (or the end) of pragmatism
By Jeff Bleich, Anne Voigts & Michelle Friedland

In her final term on the Supreme Court, despite Justice Sandra Day O’Connor’s issuing no landmark concurrences and losing some key 5-4 decisions, she demonstrated — perhaps more than ever before — the profound mark she has made on the Supreme Court’s jurisprudence. Throughout her time on the Court, Justice O’Connor has defied easy labels, baffled pundits and either delighted or bedeviled her colleagues by deciding cases incrementally and pragmatically. While other justices’ opinions invoked one particular judicial doctrine or another — judicial restraint, original intent, loose constructionism — Justice O’Connor’s opinions appeared less concerned with allegiance to any of these sacred cows than with fairly deciding the case in front of her, using whatever tools seemed necessary. She has been the Court’s pragmatist. And this term, even when she was not in the majority, pragmatism reigned supreme. In case after case — whether the question concerned a town taking private property for commercial development, the Ten Commandments being displayed in public spaces, states regulating the sale of medical marijuana, condemned people challenging application of the death penalty against them for crimes they’d committed as juveniles, or the United States balking at the effect of decisions of the International Court of Justice — the Court’s debate was principally practical, not doctrinal. This pragmatism may be short-lived however. Only time will tell whether this pragmatism will live on in future terms, or whether it will retire along with Justice O’Connor.

The End of An Era
The retirement of Justice O’Connor marks the end of a nearly unprecedented era of tability on the Court. This group of justices had sat together without a change in membership for 11 years, the longest period of any Court in nearly 200 years. One would have to go back to the early 1800s for a similar situation. Back then, 12 years passed before a change occurred in the Chase court; Justice Smith Thompson replaced Justice Brockholst Livingston, which was likely the most renowned event of both of their judicial careers. As a result of the current Court’s longevity, certain patterns either developed or became more apparent in this Court, including a certain confidence in their ability to disagree with each other, their coordinate branches and the lower courts. In addition to displaying pragmatism, four traits in particular help explain some of the Court’s actions this term: namely, the Court’s reluctance to take many cases, its tendency toward open disagreement; its aggressive policing of other branches’ use of authority and its tendency to revisit and refine its own earlier decisions.

The Court this term again determined that less is more in deciding cases. The Court’s docket has been steadily shrinking over the past two decades, and it continued to drop steadily under this current court. Twenty years ago, the Court received about 4,200 petitions per year and decided about 150 of those each term, or about 3.5 percent of all petitions. Ten years later the chances of having a case heard had fallen by two-thirds: the Court was receiving approximately 6,900 petitions and hearing only 84 cases. This term, the Court heard even fewer cases (only 80 despite receiving 8,400 petitions), and for the first time in our memories did not fill all of its oral argument slots.

Despite taking relatively few cases, the Court managed to generate more than its share of opinions and to express sharp disagreements in more than 40 percent of those cases. This term 20 decisions were decided by a 5-4 vote on either the entire case or on a major issue. Another 15 cases were decided by margins of 5-3 or 6-3. This means that in a whopping two-fifths of the Court’s cases, a change in one or two votes would have changed the outcome of the case. Interestingly, though, differences arose not from the usual philosophical disagreements, but based upon dueling visions of pragmatism. As a result, cases broke along relatively unpredictable lines. To put it in perspective, in the 2003 term, Justice O’Connor had been in the majority in 100 percent of the Court’s 5-4 decisions. This past term, she and Justice Kennedy were in the majority in barely half of the 5-4 cases. Instead, participation in majorities was pretty evenly split among all of the nine justices, although the tone of the dissenting opinions was just as sharp.

The Court also continued its trend of aggressively policing the fault lines of the balance of power among the three federal branches, the states, lower courts and even international bodies. This Court has been willing to invalidate important pieces of federal legislation — including portions of the sentencing guidelines, term limits, the Gun-Free Schools Act and the Violence Against Women Act — at an unprecedented rate. In the first 100 years of the Court’s history, only two federal acts were invalidated as an impermissible exercise of federal authority (or one, depending upon how you read Marbury v. Madison). By contrast, in only 11 years, this Court invalidated over 30 pieces of federal legislation, as well as many more regulations, executive orders and non-statutory types of federal actions. The Court was not just tough on the president and Congress. This year it continued to correct rather than praise the lower courts (reversing in 70 percent of the cases it heard), took recalcitrant state courts to task (particularly Texas’s) and stood in the way of a few states as well (invalidating California’s medicinal marijuana statute, and Michigan’s bans on out-of-state wine sales). Indeed, it came to the brink of policing the power of decisions of the International Court of Justice before deciding that events had overtaken them this Term.

Finally, the Court continued its incrementalist ways. Over the past decade, the Court has generally been willing to avoid aspects of decisions on technical grounds despite fact that it will inevitably revisit them. For example, over several years it chipped away steadily at the underpinnings of the federal sentencing guidelines before finally announcing the apparent death of them, only to revive them in a different form this term in the Booker/Fan-Fan decisions. Likewise, it continued to revisit issues concerning application of the death penalty against those with diminished mental capacity. In 1989, the Court held in Penry v. Lynaugh that capital juries needed to be advised of mental retardation, but that execution of those who were mentally retarded was not cruel and unusual. That same term in Stanford v. Kentucky it upheld application of the death penalty against those who committed crimes after they were 15, because it found that there was no national consensus that executing someone for a crime they’d committed as a 16-year-old was cruel and unusual. But, in Atkins in 2002, the Court held that executing mentally retarded people violated the Eighth Amendment, and this term in Roper it held that executing persons for crimes committed before they were 18 actually was cruel and unusual. The Court continued to examine state-sponsored religious symbols and references to religion on a case-by-case basis in a pair of cases about public displays of the Ten Commandments. And it artfully (or inartfully) dodged some thorny issues about the international power of federal courts in the Medellin case by concluding that they should wait for another day.

Ten Commandments
The Court’s split rulings on the Ten Commandments epitomized the justices’ heavy emphasis on pragmatism this term. In McCreary County v. ACLU, the Court considered the constitutionality of a six-year effort by two Kentucky county courthouses to hang the King James version of the Ten Commandments prominently in their hallways. After being sued for displaying the Ten Commandments by themselves, the counties clumsily added other historical documents such as the Declaration of Independence and the Mayflower Compact, but with their religious references highlighted, as a simultaneous tip-of-the-hat, and poke-in-the-eye to the original display’s detractors. Writing for a 5-4 majority, Justice Souter noted that the counties’ purpose of seeking to advance a religious purpose was obvious from the history of the case, and the Court simply could not swallow the counties’ "implausible claim" that the displays were for a secular purpose of teaching history to visitors. Justice O’Conner concurred but added a broader practical concern: those who questioned the Court’s current Lemon test for restricting state endorsement of religion should recognize that the test has been effective in preventing the nation from becoming a theistic society. "At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate . . . Why would we trade a system that has served us so well for one that has served others so poorly."

In the companion case of Van Orden, the Court found that practical considerations took them in a different direction. In that case, the Court considered a much older display of the Ten Commandments that had been installed on the Texas statehouse grounds nearly 45 years earlier. The commandments had been donated by the Fraternal Order of Eagles, a benevolent society that sought to combat juvenile delinquency by giving these monuments to communities around the country. The Court found that, in this case, there was no religious endorsement — again 5-4 — but with no actual majority. The controlling fifth vote, a concurrence by Justice Breyer, offered an unbridled homage to pragmatism. Justice Breyer shrugged that this was one of those borderline cases for which there exists "no test-related substitute for the exercise of legal judgment." He found that as a practical matter, this just did not seem like an attempt to foist religion on people. In particular, he noted that: the Eagles had made special efforts to track down a non-sectarian version of the Ten Commandments; the monument had been placed innocuously in a large park with many other monuments; and the monument hadn’t bothered anyone enough to cause them to complain for over 40 years.

A Controversial Take on Takings
One of the most controversial decisions of the term, Kelo v. City of New London also highlights the great extent to which questions of pragmatism shaped the debate. As set out in Kelo, the city of New London, Conn. had fallen on rough times. With an unemployment rate that was twice the state’s average, and its lowest population since 1920, its listless economy earned it the dubious designation of a "distressed" community. Perhaps inspired by Super Bowl advertisements, the slumping city turned to Pfizer, the maker of Viagra, to help restore New London to its former vigor. Pfizer agreed to construct a $300 million research facility adjacent to a former naval base, Fort Trumbell. Seizing on this opportunity, New London adopted a comprehensive plan to attract other desirable economic partners such as Starbucks to what would be a newly revitalized waterfront area, built by private developers. Mr. Kelo, a local resident, refused to sell his home in this redevelopment area to those developers and he challenged the city’s condemnation of his property as an unconstitutional taking, because it was not for a "public purpose." Instead, Mr. Kelo argued, the city was merely taking property from one private citizen (him) and giving it to a more attractive private citizen (a developer with big bucks). Justice Stevens, writing for the 5-4 majority, upheld the taking, finding that New London was entitled to condemn property for a private developer, as long as doing so was a rational means to achieve a legitimate "public purpose." The majority found that reviving New London’s stalled economic engine and restoring its reputation satisfied that public purpose. The decision offered a practical standard for deciding if a taking was for a public purpose: as long as the purpose was to promote the community good and not to give economic or other benefit to another private entity, then the "public purpose" requirement was satisfied. In a stinging dissent, Justice O’Connor took that practical analysis to task and offered her own version of pragmatism. Writing for herself and Justices Rehnquist, Scalia and Thomas, Justice O’Connor criticized the majority for being naïve about the ways of small town government. She explained that a bright line was necessary to prevent city councils from using their power to condemn the private property of disenfranchised people in order to award lucrative property rights to their friends and supporters. Any squishy test, she explained, was destined to fail because a transfer of property to a commercial interest will almost always advance some economic development interest, but the backroom political influences that actually inspired the transfer will be almost impossible to detect. Justice Thomas, characteristically, proposed an even brighter, bright-line test that would require that the property be acquired not simply for a public purpose but for a public use,which is open to the entire public.

By contrast, in Lingle v. Chevron USA Inc, the Court was in heated agreement about the need for bright line rules in a different takings situation. The Court unanimously found that — for practical reasons — a bright line test was necessary to avoid confusion about whether a government burden was or was not a taking. The case concerned Hawaii’s questionable attempt to keep gas prices low by adopting a statute that limits the rents that an oil company could charge for leasing its service stations. The Ninth Circuit, applying the Supreme Court’s 1980 decision in Agins v. City of Tiburon, noted that the taking did not substantially advance a legitimate interest (because it was not at all clear that service station owners would pass on their savings to gas purchasers). For that reason, it invalidated the law. The Court reversed, concluding that its old Agins test had been "regrettable." As the Court explained, whether the government had burdened someone’s property to the point of a "taking" should not depend upon whether there was a good reason for the government’s action, but only on what effect that action had on the property. Again, the conclusion was practical. For purposes of determining whether a property owner is entitled to just compensation, it simply does not matter why property was taken, only whether it was taken. The Court thus overruled Agins and apologized to the lower courts for leading them astray.

The Commerce Clause Limits Weed, Not Wine
Although Mr. Kelo was not a party in Gonzalez v. Raich, he had the right moniker for a case that took the "high" out of the high court. In Raich, the Court considered whether a federal law prohibiting all use of marijuana was a valid exercise of Congress’ commerce power that would prevent enforcement of California’s Compassionate Use Act. The Compassionate Use Act permitted seriously ill individuals to purchase and use marijuana for medicinal purposes. The plaintiffs argued that under the Court’s more recent Commerce Clause jurisprudence, the federal government exceeded its power by barring use of home-grown marijuana that had no effect on interstate commerce. By a 6-3 margin, the Court demonstrated that — regardless of whether marijuana has all of the healing properties that Californians attribute to it — it does have the remarkable capacity to make Justice Scalia vote with the anti-federalists.

Again, the divisions broke down along practical lines. Writing for the Court, Justice Stevens explained that allowing people to grow and use marijuana as a medical supply could, as a practical matter, affect the national market for marijuana and for other painkillers that these patients would use instead of marijuana. Carving out an exception for medicinal use would also make the enforcement of marijuana laws more difficult. As Justice Stevens noted, it would be difficult if not impossible for federal agents to distinguish home-grown California marijuana that had been cultivated for medicinal use from evil weed grown elsewhere or for illegitimate purposes such as "inspiring" Snoop Dogg. This, he explained, would leave a gaping hole in federal law enforcement efforts. Justice Scalia, who concurred in the judgment, stressed that in his view the purchase and sale of marijuana is an economic activity that can be regulated intrastate by the federal government as long as doing so is "necessary and proper" to accomplish a more comprehensive regulation of interstate commerce.

Justice O’Connor, joined by the Chief and Justice Thomas, dissented, on the ground that the Court’s decision had, in their view, no practical, limiting principle. Congress had made no findings that marijuana use by seriously ill Californians who took marijuana for pain relief had any impact on interstate markets. Instead, under the Court’s ruling, even if only a dozen people qualified for the right to grow and use their own marijuana for therapeutic purposes, it would still have an effect on interstate commerce sufficient to allow Congressional action. The dissent thus faulted the majority for adopting a rule by which virtually every human activity could be said to affect interstate commerce, and thus be subject to federal regulation.

Justice O’Connor’s brand of practicality also lost out in this term’s gift to the state of California, Granholm v. Heald. In Granholm, the Court broke down along unusual lines to invalidate state laws that prohibited the sale of wine from out-of-state retailers based on the Dormant Commerce Clause. The 5-4 majority relied on practical conclusions and (at least according to Justice Stevens’ dissent), an apparent generation gap. Granholm concerned whether the 21st Amendment to the Constitution permits states to bar direct purchases of out-of-state wine. The amendment, which repealed prohibition, provided that "(t)he transportation or importation into any State … of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." Although the majority and dissenting opinions sparred principally over matters of history (causing Justice Stevens to grumpily lament "the younger generations who make policy decisions"), the Court also made some practical judgments about wine use generally. In dealing with whether the regulations violated the Dormant Commerce Clause, the majority rejected New York’s and Michigan’s attempts to justify their laws as advancing legitimate local purposes that could not be achieved in a non-discriminatory way.

Invalidating the Juvenile Death Penalty
In Roper v. Simmons, a 5-4 majority found that offenders who commit capital offenses before they are 18 are not eligible for the death penalty. Simmons, who was 17 when he committed a capital murder, had his sentence commuted from death to life without parole by the Missouri Supreme Court based on the Eighth Amendment’s prohibition on cruel and unusual punishment. In affirming that decision, Justice Kennedy applied the Court’s "evolving standards of decency" test to conclude that there was now a national consensus against a juvenile death penalty. In particular, the Court noted that 30 states now bar application of the death penalty against juveniles, those that have such a penalty on the books rarely if ever enforce it, and virtually no other civilized nation permits it. But beyond that standard, the Court also considered practical concerns including the deficits of juveniles, the fact that public passion may cause juries to ignore those deficits and the need for a bright-line to police that tendency. In dissent, Justice O’Connor accepted the majority’s framework but rejected its ideas about what was or was not practical. She concluded that state legislatures and juries were perfectly capable of distinguishing between mature and immature juveniles. Instead, the Court’s bright-line would allow mature juveniles to automatically avoid the death penalty, but still leave in the hands of a jury the virtually identical issue of whether to execute an immature 18-year-old.

Dodging International Law
Finally, the Supreme Court revealed its consummate pragmatism by what it did not decide. In Medellin v. Dretke, the Court faced a veritable minefield of explosive issues including states’ rights, international treaties, habeas, the death penalty and the powers of the executive. That case concerned whether federal courts were bound by a decision of the International Court of Justice (ICJ) interpreting a treaty — ratified by the U.S. — which expressly stated that the ICJ would be the ultimate arbiter of the treaty’s meaning. The treaty at issue, the Vienna Convention, requires that if a state arrests a foreign national, it advise the person of his or her right to diplomatic assistance and also tell the person’s embassy of the arrest. Texas, among other states, repeatedly failed to do this, resulting in dozens of foreign nationals on death row who had never been advised of these rights. In response to a challenge by some Mexican prisoners, Texas had argued successfully in the lower courts that it was too late for these issues to be raised, and that the prisoners’ attorneys should have thought to make the argument earlier. Mexico then sued the United States in the ICJ for a ruling that the Texas’ procedural rules (and the federal court’s honoring of those rules) were inconsistent with the obligations of the United States under the treaty. The ICJ ruled in favor of Mexico, and — in the spirit of less than perfect international cooperation — both Texas and the Fifth Circuit refused to apply that decision.

After full briefing and argument, the Court in a 5-4 unsigned opinion dismissed the writ as improvidently granted based on subsequent developments. The Court’s per curiam opinion relied on the fact that a month before oral argument, the president announced that the United States would adhere to the ICJ ruling by "having state courts give effect to the decision," (something that the president has no actual power to order the states do). Rather than having to grapple with whether the president had this unprecedented power over state courts, whether the case had come up in the correct procedural posture on habeas, and whether judge-made rules of federal procedure would trump a decision that was binding under an international treaty, the per curiam punted. Justices Stevens, Breyer, Souter and O’Connor dissented, arguing that the Court should not have dismissed but should have remanded to the Fifth Circuit to address these claims. Surprisingly, Justice Ginsburg apparently threw in her lot with the per curiam, perhaps to avoid the practical problems of having dueling proceedings in the Texas state and federal courts.

The Future
With Justice O’Connor’s departure, and an imminent change in the Court’s composition, there is no way to know whether this term’s pragmatism will continue. Given Justice O’Connor’s pivotal role on the Court, it could well be that her colleagues adopted her approach as a way of seeking to gain her support. If that were the case, then when she leaves the Court, their interest in practical analysis may depart as well. On the other hand, if Justice O’Connor’s approach has actually gained adherents among some other Court members, then this may be part of her enduring legacy. For all practical purposes, though, only time will tell.

Jeff Bleich is a litigation partner at Munger,Tolles & Olson in San Francisco. He clerked at the U.S. Supreme Court for Chief Justice Rehnquist in the 1990 term and has taught courses on federal constitutional law and habeas corpus. Anne Voigts is a litigation associate at Munger, Tolles & Olson. She clerked at the U.S. Supreme Court for Justice Stevens in the 2000 term and has taught a course in criminal procedure. Michelle Friedland is a litigation associate at Munger, Tolles & Olson. She clerked at the U.S. Supreme Court for Justice O’Connor in the 2001 term and has taught courses on federal jurisdiction and environmental law.

© 2005 Jeff Bleich, Anne Voigts & Michelle Friedland

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