Statement of Steven R. Shapiro - 2008 Supreme Court Term

Roberts Court Begins Fourth Term But Remains A Work In Progress

John Roberts begins his fourth term as Chief Justice when the Supreme Court returns for business on October 6, 2008. There is no doubt that he presides over a conservative Court. Indeed, there is little doubt that the Roberts Court is even more conservative than the Rehnquist Court that preceded it.

Judicial conservatism, however, can take many forms and the Roberts Court has wavered during its first three years. At times, it has promoted a muscular judicial activism. At other times, it has trumpeted the importance of a limited judicial role. That difference may be tactical. In other words, a conservative majority may be prepared to endorse whatever approach is most likely to produce a conservative result in a particular case. It may reflect the vagaries of the Court's docket. Each year produces a different set of cases and a different set of issues. Or it may reflect a more fundamental but unresolved philosophical debate within the Court. We still do not know.

The 2005 Term was a transitional one and the Court seemed to recognize as much. Chief Justice Roberts had just arrived and Justice O'Connor had already announced her intention to leave. In her final opinion for the Court, Justice O'Connor led a majority in striking down New Hampshire's parental notification law because of the absence of a health exception, but she sent the case back to the lower courts to work out a remedy. In so doing, she modestly noted that "we do not revisit our abortion precedents today."

That sense of judicial restraint disappeared almost entirely during the 2006 Term, along with Justice O'Connor, who by then had been replaced on the Court by Justice Alito. In the Term's two signature decisions, the Court upheld the federal so-called partial birth abortion ban only seven years after striking down a similar law from Nebraska as unconstitutional, and it struck down voluntary school integration plans in Seattle and Louisville only four years after stressing the importance of student diversity in upholding the University of Michigan's use of race as a factor in its admissions process. Announcing his dissent in the school cases, Justice Breyer summarized the significance of those reversals and the sense that they might herald the beginning of a conservative judicial revolution when he said: "It is not often in the law that so few have changed so much so quickly."

Last Term's record was less doctrinaire but no less ambitious. The Court reinterpreted the Second Amendment as a source of individual rights, and upheld the constitutional right of Guantánamo detainees to challenge their detention in federal habeas corpus proceedings. One was perceived as a victory for the Court's conservative wing, the other as a defeat. Both cases nonetheless reflect a strong sense of the Court's institutional role as constitutional arbiter in our system of checks and balances.

In marked contrast, the Roberts Court has made it progressively harder to challenge unconstitutional laws as facially invalid by invoking the mantra of judicial restraint in a series of decisions during the past three years. Last Term, for example, the Court ruled that a challenge to Indiana's voter ID law was premature despite evidence that the law threatened to disenfranchise tens of thousands of Indiana voters.

The upcoming Term will inevitably provide more insight into the judicial personality of the Roberts Court. Some of the most important cases are still in the pipeline, however, including two significant cases involving the ACLU. In al-Marri v. Pucciarelli (08-368), the ACLU has filed a petition for certiorari asking the Court to determine whether someone lawfully residing in the United States can be designated an "enemy combatant" and imprisoned by the military without charges or trial. And, in Northwest Austin Municipal Utility District v. Mukasey (08-322), the ACLU is opposing an appeal that seeks to challenge the constitutionality of the Voting Rights Act, which Congress reauthorized in 2006. Both those cases are addressed more fully in separate statements by two ACLU lawyers, Jonathan Hafetz and Laughlin McDonald.

The Court has so far granted review in 56 cases, which represents about two-thirds of all the cases the Court is likely to hear this year. Many raise civil liberties issues; none probably qualifies as a blockbuster case.

Two present high profile First Amendment battles. In FCC v. Fox Television Stations (07-582), the Court will consider whether the FCC adequately justified its departure from past practice when it attempted to ban even "fleeting expletives" from the airwaves as "indecent" speech. Lurking in the background is the larger question of whether the FCC's authority to regulate "indecent" speech is consistent with the First Amendment given the arbitrary manner in which the FCC has enforced the "indecency" rule, and the fact that the FCC's regulatory authority does not reach either cable or the internet.

Pleasant Grove City, Utah v. Summum (07-665) concerns the often volatile intersection between speech and religion. There, the issue is whether a municipality's decision to display a privately donated Ten Commandments monument in its city park requires it to provide equal treatment to a similarly sized religious monument offered to the city by adherents of another faith. Normally, disputes about the public display of religious monuments are presented to the Court as Establishment Clause issues. In this case, the plaintiffs are arguing that the city violated their free speech rights by disfavoring their message on the basis of content and viewpoint.

Several cases on the Court's docket that have not received enormous attention nonetheless have enormous potential to alter how civil rights claims are litigated and their likelihood of success.

Ashcroft v. Iqbal (07-1015) raises what may seem at first glance like a technical question. Iqbal was arrested and detained by the federal government in November 2001. He later sued, claiming that he was seriously mistreated while in detention, and that the decision to designate him as a person "of high interest" in connection with the September 11 investigation was based on racial and religious discrimination. John Ashcroft, who was then Attorney General, is one of the defendants named in the lawsuit. There is little serious dispute that, if proved at trial, Iqbal's allegations against Ashcroft would be sufficient to establish a constitutional violation. Even so, the government claims that high-ranking officials, like Ashcroft, should not be subject to civil lawsuits unless the plaintiff can assert enough facts in the initial pleading to make the allegation of wrongdoing "plausible." The lower court found that the allegations against Ashcroft were plausible given the context of this case. By arguing to the contrary, the government is asking civil rights plaintiffs to begin the case with a level of factual knowledge that is often obtained only through discovery. What seems, therefore, like a lawyers' fight over pleading rules, is actually a veiled effort to insulate high-ranking officials from having to defend lawsuits that might well have merit.

The question of immunity for government officials arises even more directly in Pearson v. Callahan (07-751). A government official who acts unconstitutionally is nonetheless protected from damages under the doctrine of qualified immunity if the constitutional rules were not clearly established when the official acted. In 2001, the Supreme Court directed lower courts to consider qualified immunity claims by asking two questions in sequence: first, whether the plaintiff's constitutional rights were violated; and second, whether the law was clearly established at the time. In Callahan, the Court will decide whether lower courts can alter that sequence. The problem with granting that flexibility, and the reason the strict two-step rule was first announced, is that the legal uncertainty that justifies qualified immunity can be perpetuated from case to case unless the threshold question of what the Constitution requires is first resolved. Qualified immunity is already a potent defense for government officials and this case, depending on the outcome, could expand its use still further.

Van de Kamp v. Goldstein (07-854) is the third case in this trilogy. Unlike most government officials who enjoy qualified immunity from damages, prosecutors are granted absolute immunity for any actions taken in their prosecutorial capacity. Over the years, the Supreme Court has decided a series of cases attempting to define the line between prosecutorial actions and investigative actions. This case raises the related question of whether a prosecutor's failure to maintain an informant database, so that relevant information can be disclosed to a criminal defendant about any informant who is scheduled to testify at trial, is an administrative failure (and thus entitled to qualified immunity) or a prosecutorial failure (and thus entitled to absolute immunity). The real world consequences of that failure are illustrated by this case. Goldstein was wrongly convicted of murder and imprisoned for 24 years based on the false testimony of a confidential informant.

Two other cases threaten to close the courthouse doors to civil rights claimants in a different way: by preventing constitutional claims from being brought at all. In Fitzgerald v. Barnstable School Committee (07-1125), the issue is whether Title IX, which bars any recipient of federal funds from discriminating on the basis of gender in schools, was intended to bar a victim of sex discrimination from suing a school district directly under the Constitution. The issue is significant because, while Title IX and the Equal Protection Clause both prohibit discrimination, they have different reach and provide for different remedies. In Haywood v. Droun (07-10374), the issue is whether a state - in this case, New York State - can prohibit prisoners from bringing constitutional claims against correction officers in state court.

Constitutional rights can be overruled directly, or the ability to enforce those rights can be whittled away slowly without much public discussion or accountability. The cases on the Court's docket this year open the door to a stealth attack. How the Roberts Court responds to those cases will be illuminating.

The ACLU's Supreme Court briefs can be found online at: www.aclu.org/scotus/index.html