Justice Souter Ends A Distinguished Career As U.S. Supreme Court Concludes A Relatively Quiet Term

June 29, 2009

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NEW YORK – The Supreme Court concluded its 2008 Term today, clearing the stage for the confirmation hearings of Judge Sonia Sotomayor, which are scheduled to begin in the Senate on July 13. It also marks the end of Justice David Souter's distinguished career on the Supreme Court.

"Justice Souter approached his job with a quiet dignity, a sharp mind, a wry sense of humor and a deeply held belief in basic fairness," said Steven R. Shapiro, Legal Director of the American Civil Liberties Union. "He did not come to the Court with an ideological agenda, and never developed one. Justice Souter defined his role as judging, and he did it superbly. He has earned his retirement and the nation's gratitude."

Justice Souter's final opinion for the Court was a memorable one. In Safford Unified School District v. Redding, the Court ruled that school officials looking for ibuprofen pills violated the Constitution when they strip-searched a 13-year-old girl represented by the ACLU based on the uncorroborated tip of another teenager who was already in trouble for violating school rules. The 8-1 ruling in Redding was a rare and important victory for students' rights in the Supreme Court.

In another closely watched case decided on the last day of the Term, the Court held in Ricci v. DeStefano that the City of New Haven violated federal anti-discrimination law by refusing to certify the results of two promotional exams that had been given to firefighters, despite the fact that no African-Americans were eligible for promotion based on the test scores.

While acknowledging that racially disparate impact, a closely divided Court applying a newly minted test for the first time concluded that New Haven had failed to demonstrate a "strong basis in evidence" for believing that its tests were flawed or that it could have identified qualified candidates for promotion through other, less discriminatory means.

The Ricci decision reversed a ruling in favor of New Haven by an appellate panel that included Judge Sotomayor. It does not require employers to accept test results that have a racially disparate impact, but it makes it harder to reject them.

Notwithstanding the customary flurry of last-minute decisions, there were fewer high profile cases than usual on the Court's docket this Term. In addition, some highly anticipated decisions either never materialized or turned out to be less significant than expected.

That was certainly true in Northwest Austin Municipal Utility District Number One v. Holder, where the Court declined to rule on the constitutionality of the pre-clearance requirements that have been a critical part of the Voting Rights Act since 1965. Instead, the Court construed the language of the statute to make it easier for local jurisdictions now subject to the Act to "bail out" from their preclearance obligations. The ACLU represented an African-American voter in the utility district.

The Court also passed up an opportunity to resolve a major constitutional dispute by dismissing the ACLU's appeal in al Marri v. Spagone, after initially deciding to hear the case. When the Court granted certiorari, al-Marri was the only person detained in the United States as an enemy combatant, and the case presented the important question of whether someone arrested in the U.S. could be held without charges in military custody.

Before the case was argued, however, the Obama administration transferred al-Marri back to civilian custody for trial in the criminal justice system. The Court then decided that the case was moot, even though the government never conceded that al-Marri's designation as an enemy combatant (by the Bush administration) was improper or renounced its authority to re-designate him in the future.

"This has been a relatively quiet Term," Shapiro said. "Some have described it as evidence that a conservative Court has embraced a modest vision of its judicial role and adopted a cautious approach to constitutional decision-making. Until now, however, the Roberts Court has not demonstrated much reluctance in aggressively asserting its constitutional views."

"Alternatively, the equivocal nature of many of this Term's rulings may simply reflect the difficulty of achieving a majority in close cases on a divided Court. Or, this Term may be nothing more than an idiosyncratic product of the particular cases that came before the Court, and thus say little about what to expect next year."

A summary of all of the Court's major civil liberties-related cases from this Term is online in at: www.aclu.org/organization-news-and-highlights/aclu-summary-2008-supreme-court-term

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