Rehnquist's court, but liberals gain

The just-finished term yielded a string of rulings that set back conservatives.

By , Staff writer of The Christian Science Monitor

If constitutional interpretation were race-car driving, the US Supreme Court term that ended this week would be notable more for applying the brakes than hitting the accelerator.

Two key areas of conservative jurisprudence hit speed bumps in major rulings - property rights and federalism, or states' rights.

As a result, the so-called federalism revolution is suddenly looking a lot less revolutionary. Some analysts are questioning whether the "Rehnquist Court" under conservative Chief Justice William Rehnquist might be better described as the "Stevens Court," in recognition of the behind-the-scenes role of Justice John Paul Stevens in assembling majorities supporting liberal decisions.

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"Justice Stevens has never had a more profound influence," says Jonathan Turley, a professor and longtime court watcher at George Washington University Law School. But he says it is premature to declare a Stevens Court. "To the extent that the Rehnquist revolution has slowed, it is because it can't go any further without creating massive legal changes," he says. They are changes that the conservative wing itself - particularly centrist swing voters Justices Sandra Day O'Connor and/or Anthony Kennedy - is unwilling to unleash.

Carried to their extreme, the federalism and property-takings projects might have triggered a wholesale assault on much of the modern regulatory state that dates from the New Deal. But instead of a call to arms, the conservative wing disintegrated, leaving the chief justice with no blockbuster precedents this year.

In contrast to the conservative drought, the high court produced a string of liberal victories. The juvenile death penalty was struck down as unconstitutional, the court made it harder to exclude black jurors from cases involving black defendants, and the justices embraced expansive interpretations of three civil rights laws, making it easier to fight discrimination based on gender, age, and disability. The court also reversed four death sentences and ruled that defendants may not be routinely shackled in front of the jury during the penalty phase of a capital trial.

Analysts note that such outcomes aren't the work of Stevens alone. They point to the continuing importance of Justices O'Connor and Kennedy, who often wield the deciding vote in close cases.

This year, Kennedy, in particular, emerged in high-profile cases. He played a decisive role in striking down the juvenile death penalty. His was also the deciding vote in the property-rights case - siding with the City of New London, Conn., and against residents who objected to the city demolishing their homes to make room for a privately owned development project aimed at helping boost the city's tax rolls.

That decision is a major setback to what had been a growing property-rights movement seeking a more robust application of constitutional protections for private property. Instead, the five-justice majority adopted a constitutional interpretation that strongly favors cities and government officials rather than home and property owners.

Kennedy also voted in the majority in the other major setback for conservatives this term. By 6 to 3, the justices ruled that Congress has the authority to ban the medical use of marijuana even when state laws permit such use of the drug.

The case was a showdown over the extent to which the high court's conservative wing was willing to adopt a more restrictive reading of Congress's commerce-clause powers. Since 1995, the same 5-to-4 majority has struck down federal laws that it said had nothing to do with commerce or economic activity and thus violated the constitutional balance of power between the federal government and the states.

Now that line of cases has been sharply limited by the ruling in the medical-marijuana case. In addition to Kennedy, conservative Justice Antonin Scalia joined the court's liberal wing in upholding Congress's power to regulate the illicit drug trade even when those regulations tread on state and local authority.

The end result: No one is talking about a federalism revolution anymore.

"I think it was never a revolution," says Richard Garnett, a professor at Notre Dame Law School and former Rehnquist law clerk. "It was just a correction, a reminder that there are these themes in our constitutional tradition that are relevant to questions of federal power."

He adds, "This whole question of federalism and enumerated powers is going to be sort of back-burner for the next several years."

One issue that won't be on the back burner anytime soon is the posting of the Ten Commandments and other religious symbols on public property. The high court took up a pair of cases to help resolve an explosion of litigation nationwide over whether the First Amendment's establishment clause permits such displays.

The justices split 5 to 4 in both cases, upholding a six-foot-tall display on Texas' Capitol lawn but striking down presentations of framed copies of the Ten Commandments in two courthouses in Kentucky. Justice Stephen Breyer was the key swing vote in both cases.

The split-the-difference nature of the two decisions leaves plenty of leeway for lawyers on both sides to continue waging their church-state battles.

Arguably the most important church-state decision handed down this year came in another case, which challenged the constitutionality of a federal law that requires states to accommodate the religious worship of prison inmates and other institutionalized persons. Ohio officials said the law violates the establishment clause by mandating preferential treatment for religious inmates.

The high court ruled 9 to 0 that religious accommodations do not have to be matched by similar benefits to secular individuals or entities. Otherwise, the high court said, all religious accommodations would be unconstitutional.

The ruling is of particular importance to members of minority faiths who often depend on accommodations and exemptions to worship without government interference.

Also this term, the court ruled that federal sentencing guidelines violate the jury-trial guarantee of the Sixth Amendment. The court said the guidelines violate constitutional protections by empowering judges to enhance a criminal sentence based on information that was never presented to the jury at trial.

And by a 9-to-0 vote, the high court put peer-to-peer software producers on notice that they can be held liable for intentionally helping others steal copyright-protected music and movies on the Internet. The ruling applies copyright law to cyberspace and seeks to achieve a balance between upholding copyright law while not triggering a barrage of litigation that might stifle technological innovation.

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