The Supreme Court Moves to the Right
Seismic changes occurred in the Supreme Court’s 2005 term. A new chief justice took his seat just days before the term began, a new associate justice joined halfway through the term, and a new swing voice on many closely-divided issues began to emerge.
The Court’s membership changed for the first time in
11 years, with the appointment by President Bush of John Roberts to replace the late William Rehnquist and Samuel Alito to replace the retiring Sandra Day O’Connor.
Civil rights groups had objected to the nominations, calling both nominees’ judicial philosophies and civil rights records out of the mainstream.
According to Wade Henderson, president & CEO of the Leadership Conference on Civil Rights, “All evidence indicates that Judge Roberts would use his undeniably impressive legal skills to bring us back to a country that most of us wouldn’t recognize: where states’ rights trump civil rights; where the federal courts or Congress can see discrimination, but are powerless to remedy it. This is not the America in which most Americans want to live.”
With respect to Alito, Henderson said, “Equal rights for all Americans is a fundamental principle of our democracy, yet Alito is on record favoring curtailment of those rights.”
With the votes in from their first term, John Roberts and Samuel Alito appear to be embarking on the course that opponents feared, pushing the Court farther to the right on a number of closely divided cases.
According to an analysis by the Georgetown University Law Center Supreme Court Institute, Roberts and Alito voted together 91 percent of the time, and in non-unanimous cases, 88 percent of the time. Roberts voted with Justices Scalia and Thomas 86 and 84 percent of the time, respectively. Alito, who was not on the Court for the entire term, agreed with Scalia and Thomas 77 and 74 percent of the time, respectively.
Furthermore, of the eight major civil rights cases discussed below, Roberts and Alito voted together almost 100 percent of the time, and were almost 100 percent in agreement with Thomas and Scalia. The only times their votes were not so aligned were when they did not vote at all.
Unanimity on the Court?
The percentage of cases decided without dissent was greater this term (49.3 percent) than in previous terms (37.8 for the 2004 term and 43.8 percent for the 2003 term).
Court watchers contend the unanimity this term may have had to do more with Roberts’ publicly acknowledged desire to achieve unanimity through narrow rulings than with any real agreement on legal principles or shift to the middle.
At a commencement ceremony speech last year, Roberts reportedly said, “The broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground.”
While the two civil rights cases discussed below were decided without dissent, they were based on relatively narrow rulings.
In Burlington Northern v. White, decided June 22, 2006, the Court afforded enhanced protections to employees who are suspended without pay or reassigned to less desirable job duties in retaliation for reporting discrimination. Civil rights groups applauded the 9-0 decision, which involved the scope of the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964. The Court ruled that Title VII’s anti-retaliatory provision applies even if the retaliatory actions took place outside the workplace, or even if the actions did not go as far as job termination.
Marcia Greenberger, co-president of the National Women’s Law Center, said that “if the Court had upheld the standard urged by the railroad and the administration, it would have created a hole in civil rights protections big enough to drive a forklift through.” Instead, Greenberger said, the decision “reaffirms that Title VII means what it says.”
Writing for the majority, Justice Stephen G. Breyer defined unlawful retaliation as any “materially adverse” action on the part of employers that “might dissuade” an employee from reporting discrimination. But Justice Alito, who concurred in the judgment, wrote a separate opinion that would have applied a more restrictive standard, limiting retaliation to workplace conduct only.
In another unanimous – but-narrowly – decided case, Hill v. McDonough, decided June 12, 2006, the Court held that inmates facing death by lethal injection can petition for a stay of execution on civil rights grounds, a broader option than federal habeas corpus. Clarence Hill, a convicted felon sentenced to death by lethal injection, petitioned for a stay for his execution, claiming a violation of the Eighth Amendment ban against “cruel and unusual punishment.” In a decision written by Justice Anthony Kennedy, the Court, relying on a 2004 decision allowing an inmate to challenge an invasive surgical procedure as part of the lethal injection process, held that Hill’s Eighth Amendment claim could go forward, but stopped short of ruling on the constitutionality of the lethal injection protocol itself.
Alito’s Replacement of O’Connor
Court watchers seemed to agree that Alito’s replacement of Sandra O’Connor was perhaps the most significant change in the new dynamics of the Supreme Court, given that the replacement of Rehnquist with Roberts did not seem to cause much of a shift in the Court’s ideological balance.
According to an analysis by SCOTUSBLOG of Justice Alito’s abbreviated term, “on the Court’s controversial issues, Justice Alito agreed with the conservatives an average of 15 percent more often than O’Connor did, and he agreed with the liberals an average of 16 percent less often.”
In Hudson v. Michigan, which was argued a second time after Alito joined the Court, his vote determined the outcome. Alito joined Justices Antonin Scalia, Roberts, Clarence Thomas, and Kennedy in holding on June 15, 2006, that violation of the “knock-and-announce” rule did not require suppression of evidence found in a search.
The prosecutor had conceded that police officers had not followed the rule before entering the accused’s home, but the Court, balancing what it deemed to be the “social cost” of the exclusionary rule against its deterrent value, held that suppression was an inappropriate remedy.
Alito’s vote, which followed a reargument after O’Connor stepped down, also made a difference in an opinion written by Justice Thomas, Kansas v. Marsh (discussed below), upholding a death penalty statute that the state supreme court had declared unconstitutional.
Kennedy as a Tie Breaker
With Alito’s replacement of O’Connor, Justice Kennedy became a more critical decisionmaker on the Court. His decisions this term – and perhaps for future terms to come – often carried the weight of a lone tie-breaker. When Kennedy sided with Roberts, Alito, Thomas and Scalia, important civil rights cases resulted in rulings that troubled civil rights advocates.
In Kansas v. Marsh, decided June 26, 2006, Kennedy joined Thomas, Roberts, Scalia, and Alito in ruling that a state may constitutionally apply the death penalty when a jury finds that “mitigating circumstances” that are equal in weight to “aggravating circumstances.” While legal experts do not expect the case to affect cases outside of Kansas, it is nonetheless important for the clues it gives regarding the deep splits on the Court regarding capital punishment.
On voting, six separate opinions were issued in League of United Latin American Citizens (LULAC) v. Perry, decided June 28, 2006, but Kennedy wrote an opinion joined by Roberts, Scalia, and Thomas, upholding most of the mid-decade redistricting plan created by the Republican legislature in 2003, and rejecting the challenge of African-American voters to the redrawing of a Dallas-area congressional district.
On the other hand, Kennedy’s vote enabled the civil rights community to win some important battles this term.
In the splintered LULAC case described above, Kennedy joined Stevens, Souter, Ginsburg, and Breyer in ruling that in carving 100,000 Latino voters out of Republican Henry Bonilla’s district, the state of Texas violated the Voting Rights Act because it had diminished the ability of the Latino voters in the state to elect their candidate of choice.
Kennedy provided a critical fifth vote in Hamdan v. Rumsfeld, arguably the Court’s most significant case this term. In Hamdan, decided on the last day of the term, the Court held, 5-3, that the military tribunals convened by the Bush administration to try Guantánamo detainees for alleged war crimes violated both the Geneva Conventions and the Uniform Code of Military Justice. Justice Stevens wrote the opinion, joined by Souter, Kennedy, Ginsburg, and Breyer. Chief Justice Roberts did not participate because he had previously ruled on the case while on the D.C. Circuit.
In Georgia v. Randolph, decided March 22, 2006, Kennedy sided with Stevens, Souter, Ginsberg, and Breyer, in holding that police who lack a search warrant may not enter a home if one occupant refuses to permit entry, even if another occupant consents.
In House v. Bell, decided June 12, 2006, Kennedy again joined with Stevens, Souter, Ginsberg, and Breyer in the first case to be considered by the Court on the impact of modern DNA testing. The majority allowed a new appeal for a death row convict on the basis of new evidence, even though he had exhausted his right to appeal, and even though the new evidence did not outright exonerate the accused.
Breyer’s Voice
Court watchers noted that Justice Breyer this term emerged as a leader of the liberal bloc. He was more vocal, wrote more dissents, and was more insistent in pointing out some of the flawed logic of his more conservative colleagues than in previous terms.
According to the Georgetown University Law Center Supreme Court Institute, Breyer was the only justice who wrote more dissenting opinions this term (12) than last (four).
In Hudson v. Michigan, Breyer wrote a strongly worded dissent, stating that the majority had destroyed the strongest incentive for police to adhere to the knock-and-announce rule, i.e., that evidence gathered in violation of the rule would be suppressed. And in Hamdan v. Rumsfeld, where he was in the majority, Breyer, in a specific counter to dissenters Thomas and Scalia, emphasized that the decision, rather than weakening the nation’s ability to deal with danger, instead enhanced it, by serving as an example of democracy in action.
