FOR IMMEDIATE RELEASE
Justice Kennedy Emerges as Critical Swing Vote on the Roberts Court
"The government's misuse of military tribunals is consistent with a larger pattern of abuse of power," said Steven R. Shapiro, the ACLU's national legal director. "This is an Administration that prefers to act outside the law and without judicial scrutiny. The Court properly rejected that anti-democratic view."
"Our own soldiers benefit, as much as the Guantánamo detainees, by the Court's insistence that the Administration comply with the Geneva Conventions and the rule of law," Shapiro added.
The Court also rejected the Administration's effort to have the case dismissed based on a congressional statute enacted last year. Instead, the Court upheld its right to review the legality of the military tribunals.
Chief Justice Roberts did not participate in the Supreme Court proceedings because he had previously ruled on the case while still sitting on the court of appeals. Justice Alito dissented, along with Justice Scalia and Thomas.
This was a transitional year for the Court, with the death of Chief Justice Rehnquist and the retirement of Justice O'Connor. After a decade without any changes on the Court, a great deal of attention has understandably focused on their replacements, Chief Justice Roberts and Justice Alito.
"Thus far, Roberts and Alito have pretty much performed as expected," Shapiro observed. "But in the short run, at least, their votes may be less important on a range of critical issues than Justice Kennedy, who now holds the balance of power on a closely divided Court."
That influence was apparent this year in cases involving partisan redistricting, the exclusionary rule, the death penalty, and federalism, among others. Justice Kennedy's role is likely to be even more pivotal next Term given the Court's decision to hear cases involving affirmative action and abortion.
With elections looming next fall, the Court decided two cases during its final week with potentially significant political consequences. In Randall v. Sorrell, an ACLU case, the Court reviewed a Vermont law that imposed both campaign expenditure limits and the lowest contribution limits in the country. Reaffirming its 1976 holding in Buckley v. Valeo, the Court struck down the expenditure limits as a clear violation of the First Amendment. For the first time ever, the Court also struck down the state's contribution limits, noting that low contribution limits "harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability."
Two days later, in LULAC v. Perry, the Court delivered a far more muddled message when it addressed the issue of partisan gerrymandering in a closely watched challenge to a Texas redistricting scheme that the lower court found was motivated solely by partisan considerations. A majority of the Court concluded that a partisan purpose is not enough to invalidate a redistricting plan, but it could agree on little else. It is the third time that the Court has considered the constitutional limits on partisan gerrymandering in the past two decades, and for the third time the Court concluded that the problem was beyond its capacity to solve. The absence of a judicial solution preserves the political status quo, which has largely immunized the vast majority of House members from serious political competition, although in this case one district drawn to protect an incumbent was struck down under the Voting Rights Act because it diluted minority voting strength.
In general, it was not a great year for the First Amendment. In Garcetti v. Ceballos, the Court held that the Constitution does not protect public employees who report wrongdoing in the course of their public duties, creating a perverse incentive for public employees to go to the press before they go to their superiors. In Rumsfeld v. FAIR, the Court rejected a First Amendment challenge to the Solomon Amendment, which requires universities to allow military recruiters on campus or else forfeit federal funding, even if the military's "don't ask, don't tell" policy violates university rules barring discrimination. And, in Beard v. Banks, the Court held that maximum security prisoners could be denied access to newspapers and magazines as an incentive to improve their behavior.
Two other high-profile cases this year produced brief and cryptic decisions. In Wisconsin Right to Life v. FEC, the Court held that a federal law banning the use of corporate funds to pay for broadcast ads during a designated pre-election period could be challenged on an as-applied basis by groups like the ACLU, but its two-and-a-half page opinion said nothing about what a successful challenge must show. Absent that guidance, the lower courts have thus far been unsympathetic to the as-applied challenges that the Supreme Court ostensibly endorsed.
Similarly, in Ayotte v. Planned Parenthood of Northern New England, another ACLU case, the Court unanimously ruled that New Hampshire's parental notification law was unconstitutional because it lacked a medical emergency exception. The case did not develop into the major clash on abortion that many had anticipated. Justice O'Connor's final opinion for the Court was only 10 pages long and began by noting that "[w]e do not revisit our abortion precedents today." The Court then sent the case back to the lower court to determine whether the law should be struck in its entirety or whether a medical emergency exception should be written into the law.
Hudson v. Michigan was the third ACLU case argued this Term and the most disappointing. By a 5-4 vote, the Court held that the exclusionary rule does not apply to violations of the Fourth Amendment requirement that the police knock and announce their presence before entering a home - a requirement that dates back to the 13th century. Even more ominously, Justice Scalia's majority opinion seemed to lay the groundwork for a broader attack on the exclusionary rule by questioning its continuing need as a deterrent to police misconduct. Justice Kennedy joined in that majority opinion but also expressed some reservations about its broad sweep in a separate concurrence. By contrast, Justice Alito joined in the majority opinion without reservation. His vote is significant because Hudson was initially argued while Justice O'Connor was still on the bench and then reargued after she stepped down. While it is impossible to be certain, it appears likely that the result would have been different if Hudson had been decided while Justice O'Connor was still on the Court.
The Court's record on the death penalty was a mixed one. In Hill v. McDonough, the Court made it easier for death row inmates to challenge the standard drug protocol used during lethal injection, which has come under increasing attack by medical professionals as an unnecessarily cruel method of execution. In House v. Bell, the Court cited DNA evidence for the first time as a basis for allowing a death row inmate to reopen his case based on a plausible claim of actual innocence. DNA evidence also figured prominently in Kansas v. Marsh, where the majority held that a defendant could be sentenced to death even when the jury concludes that the aggravating and mitigating circumstances that must be weighed at sentencing are evenly balanced. In dissenting from that conclusion, Justice Souter (joined by three others) emphasized the "repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests." Marsh was reargued after Justice O'Connor's retirement, like Hudson, and Justice Alito cast the deciding vote in favor of the death penalty. Despite that disappointing outcome, the Court's death penalty decisions during the past few years suggest an increasing discomfort with the fairness and accuracy of the death penalty as it is presently administered in the United States.
The Court's approach to federalism is evolving, as well. After a series of decisions that began in the mid-90's narrowly construing the legislative power of Congress and broadly construing the sovereign immunity of states, the Court has recently shifted gears. That trend continued this year. In United States v. Georgia, the Court held that state officials could be sued by prisoners under the Americans with Disabilities Act, at least in cases in which the claimed ADA violation also violates the Eighth Amendment. In Central Virginia Community College v. Katz, the Court held that the federal bankruptcy laws apply to the states. In Northern Insurance Co. of New York v. Chatham County, the Court rejected the claim that counties are broadly immune from federal suit. And, in Rapanos v. United States, Justice Kennedy's concurring opinion, which provided the crucial fifth vote, refused to accept either the plurality's cramped interpretation of the Clean Water Act or its view that deference to the federal government's more expansive construction of the statutory language would raise serious constitutional questions under the Commerce Clause.
At first blush, the decision in Gonzales v. Oregon might seem to point in the opposite direction. There, the Court ruled that the Attorney General had exceeded his authority under the federal Controlled Substances Act by threatening to suspend the federal license of any doctor who prescribed narcotic drugs as part of a physician-assisted suicide under Oregon's Death with Dignity Act. In his opinion for the Court, however, Justice Kennedy made clear that his quarrel was not with Congress but with the Attorney General's assumption of powers that Congress had never granted, a recurring theme with this Administration. Thus, the issue was not what Congress could do, but what Congress did do. More specifically, Justice Kennedy held that Congress did not "delegate to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality."
The Court also rejected the Administration's position in two important discrimination cases. In Gonzales v. O Centro Espirita Beneficente Uniao de Vegeal, a small Brazilian religious sect sought permission from the federal government to import a hallucinogenic tea used as a sacrament in its religious ceremonies. When the government refused, the church sued under the Religious Freedom Restoration Act (RFRA), which prohibits the government from burdening religion without a compelling interest. The government acknowledged the burden but argued that it had a compelling interest in the uniform enforcement of the drug laws. As Chief Justice Roberts pointed out for a unanimous Court, however, that rationale is circular and, if accepted, would defeat every claimed exemption. It is therefore inconsistent with the strict judicial scrutiny that Congress intended when it adopted RFRA and that the Court regularly applies in constitutional cases involving fundamental rights.
In Burlington Northern and Santa Fe Railway Co. v. White, the Court clarified the rules for proving retaliation under Title VII of the Civil Rights Act the principal federal statute prohibiting employment discrimination. Supporting the corporate defendant, the Administration had argued that an employee alleging retaliation must show that she suffered some materially adverse employment action after reporting discrimination in the workplace. The Court disagreed in another unanimous opinion, holding that it is sufficient to show that a reasonable employee would be deterred from reporting discrimination by the employer's response.
Davis v. Washington and Hammon v. Indiana arose in the context of criminal prosecutions rather than discrimination cases, but the problem of spousal abuse was very much on the Court's mind when it considered whether and under what circumstances out-of-court statements by a battered spouse could be introduced at trial without violating the Confrontation Clause. The answer, the Court ruled, turns on whether the out-of-court statements are made for the purpose of requesting police assistance during an emergency or gathering evidence after the emergency has ended. Applying that test in Davis, the Court allowed the prosecution to introduce portions of a 911 phone call asking the police to respond to a domestic violence threat that was still ongoing. In Hammon, on the other hand, the immediate threat was over by the time the police arrived on the scene. Accordingly, the police were barred from introducing statements made by the victim to the police as part of their criminal investigation.
"It is too early to measure the ultimate influence that Roberts and Alito will have on the Court," Shapiro said, "but it is not too early to recognize Justice Kennedy's pivotal role in the Court's changing dynamics. As the Administration pushes the legal envelope, however, there is reason to hope that even a conservative Court will insist on its role in the system of checks and balances that the current Administration would prefer to ignore."
A summary of all of the Court's civil liberties-related cases from this Term is available at www.aclu.org/scotus.
The full summary is available at: www.aclu.org/scotus/2005/26054pub20060629.html