- The Washington Times - Wednesday, July 19, 2000

In the last week of June, the United States Supreme Court concluded the contentious 1999-2000 term with a flourish. The justices issued many opinions which illustrate how deeply they are divided on the critical issues of our time.

Few lower federal courts served up as many appeals for Supreme Court consideration as the 4th U.S. Circuit Court of Appeals. This court, which hears cases arising from the federal trial courts that are situated in Maryland, Virginia, West Virginia, North Carolina and South Carolina, has recently attracted considerable notoriety for issuing politically conservative opinions. Critics have seized upon several decisions which they believe illustrate the 4th Circuit's conservative jurisprudence and which the high court resolved this term.

The quintessential example is the 4th Circuit's invocation of a rather obscure 1968 statutory provision that the federal government had never enforced to modify the Supreme Court's landmark decision in Miranda vs. Arizona. Miranda has required that the police warn individuals accused of crime of their right to counsel since 1966. None of the remaining 11 federal appeals courts had seriously entertained a Miranda challenge. Moreover, the 4th Circuit declared unconstitutional the civil rights remedy in the Violence Against Women Act, although a dozen federal district courts have upheld this proviso. The tribunal similarly invalidated a congressional statute which protects drivers' privacy, even as the 7th Circuit refused to strike it down. The 4th Circuit also ruled that the Food and Drug Administration (FDA) lacks the power to regulate nicotine as a drug and eviscerated citizen suits in environmental litigation.

Parties in all five cases filed petitions for certiorari with the Supreme Court, and the justices agreed to hear each of the appeals. Now that the court has completed the 1999-2000 term, the record that the 4th Circuit compiled merits analysis. The Supreme Court reversed three and affirmed two of the opinions during the recent term. The justices refused to change Miranda. The Supreme Court also rejected the challenge to the statute protecting drivers' privacy and reversed the 4th Circuit opinion that limited citizen suits in environmental cases. However, the high court affirmed the 4th Circuit's invalidation of the Violence Against Women Act provision for a civil rights remedy, and the justices agreed with the 4th Circuit that the FDA does not have authority to regulate nicotine as a drug.

At first glance, the 4th Circuit's record on appeal might appear mediocre. For example, the Supreme Court upheld the 4th Circuit in fewer than half of these five major cases. The two affirmances also involved a sharply divided Supreme Court and a 5-4 vote. Closer analysis, however, reveals that the 4th Circuit's record was actually better than it may seem.

For instance, most cases in which the Supreme Court grants certiorari are ones that four justices believe warrant careful evaluation. More specifically, the Drivers' Privacy Protection Act is a narrow statute, and citizen suits are more procedural then substantive. Numerous variables also attend the matters that the Supreme Court hears in any particular term. These include the cases which parties choose to appeal, the petitions for certiorari that the justices decide to grant and the controversial nature of the issues presented in important cases. The factors above mean that one term can be aberrational and emphasizes the need to take a longer view.

In sum, the Supreme Court reversed more high-profile appeals from the 4th Circuit than the justices affirmed during the recently concluded term. However, this statistic alone is essentially inconclusive because of the vicissitudes which accompany the cases heard in a single term. Federal courts observers should scrutinize future 4th Circuit opinions. For now, lawyers and parties who seek politically conservative rulings will probably continue to favor the 4th Circuit as a forum for their appeals, while the conservative majority on that court will apparently continue to issue conservative rulings.

Carl Tobias is a professor of law at the William S. Boyd School of Law, University of Nevada Las Vegas.

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