Two kindred courts break legal ground

Echoing high court shifts, one appeals panel is nudging the law to the right.

The federal appeals court in Richmond, Va., is emerging as a cutting-edge testing ground for conservative legal theories that only a few years ago seemed radical and almost unthinkable to liberal legal analysts.

Today, many of them are the law of the land. Instead of being overturned, these legal theories - involving limits to federal power and defendants' rights - are being embraced and upheld by a slim majority of conservative justices on the US Supreme Court.

"There is almost a dialogue in which the two courts are engaging one another," says Rodney Smolla, a law professor at the University of Richmond. "More than any other court of appeals in the country, it has shown some intellectual daring and a willingness to break new ground,... and that tends to get noticed."

Some of the most important cases of the current Supreme Court term illustrate the trend. The US Court of Appeals for the Fourth Circuit struck down the Violence Against Women Act because it exceeded congressional power under the US Constitution. It also ruled that the Food and Drug Administration had never been granted the authority to regulate tobacco as a drug. Both highly controversial decisions were upheld earlier this year by the Supreme Court.

And in one of the most significant cases in decades, the high court is considering whether the appeals court judges in Richmond got it right when they ruled that the landmark 1966 Miranda decision does not require police to advise arrestees of their rights prior to an interrogation. The Supreme Court's decision in that case is expected within the next two weeks.

"The Fourth Circuit is the closest in philosophy to the Supreme Court majority on these questions," says Michael Farris of the Center for the Original Intent of the Constitution in Purcellville, Va. "They are feeding [the high court] interesting cases because they are willing to take seriously what the Supreme Court is saying."

Of course, not every Fourth Circuit decision is upheld by the high court. Supreme Court justices in January unanimously overturned a Fourth Circuit decision that had struck down a federal privacy law prohibiting state governments from selling personal information on driver's licenses. The high court also overturned another Fourth Circuit decision 7-to-2 that made it harder for citizens to sue polluters to force them to comply with environmental permits.

The court to watch

Despite such setbacks, analysts say the Fourth Circuit is nonetheless the appeals court to watch for potential major Supreme Court cases. For example, earlier this month the circuit court heard arguments to end court-ordered busing in Charlotte, N.C. It also last week issued a decision regarding the application of the federal Endangered Species Act on private land. The Fourth Circuit upheld the act, despite a challenge that Congress has no authority to regulate private property.

The same Fourth Circuit judge who wrote the decision overturning the Violence Against Women Act wrote a blistering dissent in the case which will likely attract the attention of the conservative majority on the Supreme Court.

The Fourth Circuit handles appeals in the five-state region of Maryland, Virginia, West Virginia, North Carolina, and South Carolina. Currently, 11 judges, nine men and two women, sit on the appeals court, with four vacancies. A black judge has never served on the Fourth Circuit.

Character of the court

The court was considered a leader during the civil rights era. But the judges who helped uphold some of the civil rights laws all retired around the same time. As a result, Presidents Reagan's and Bush's appointments were able to transform the character of the court.

The court includes five appointees of Presidents Clinton and Carter, but for the most part, justices are moderate to conservative. Their dominance in part explains the Fourth Circuit's reputation as the most conservative appeals court in the nation. At least two members of the court, Chief Judge J. Harvie Wilkinson and Judge J. Michael Luttig, are on short-list favorites for a possible Supreme Court nomination in a future GOP administration.

What is the secret of the Fourth Circuit's apparent success? Rather than resisting or ignoring the high court's recent federalism rulings, which restrict Congress's authority under the commerce clause, some Fourth Circuit judges are eagerly seeking new ways to apply them.

"Maybe in some ways the Fourth Circuit is doing the bidding of the Supreme Court," says Paul Cassell, a University of Utah law professor who argued the Miranda issue before the Fourth Circuit and the Supreme Court.

Mr. Smolla sees a give-and-take between the two courts. "It is a sort of symbiotic process," Smolla says. "To some degree the Fourth Circuit judges are taking leads from Supreme Court decisions and running with them, and that in turn often leads the Supreme Court to take what the Fourth Circuit has done and build on that."

Activist court?

But not everyone is impressed with the Fourth Circuit's legal philosophy and decisions.

Many liberal legal analysts view the appeals court as engaging in the same kind of judicial activism that conservatives have long denounced.

"The conservative judges of the Fourth Circuit vigorously experiment with legal theories far beyond either current precedent or the directions marked out by the Supreme Court for anticipated changes," says Charles Tiefer, a law professor at the University of Baltimore Law School. "When the Fourth Circuit gets upheld at all in the Supreme Court, it has been by a 5-to-4 decision over a vigorous dissent protesting that one swing justice of the court is radically altering the law."

Conservative analysts say the appeals court is merely interpreting the Constitution rather than attempting to use legal disputes to impose its own policy choices on litigants and the nation.

"The idea that the appeals court is some kind of hotbed of conservative activism is simply not the case," says Robert Rambianco of the Washington Legal Foundation, a conservative public-interest law firm. "Generally, what you have is a court that is not being activist at all. It is a court that is basing its decisions on its reading of the Constitution, not on its ideology."

In his opinion striking down the Violence Against Women Act, Chief Judge Wilkinson raised the same issue. "It is a grave judicial act to nullify a product of the democratic process," he wrote. "The hard question is whether our decision constitutes an indefensible example of contemporary judicial activism or a legitimate exercise in constitutional interpretation."

(c) Copyright 2000. The Christian Science Publishing Society

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