- The Washington Times - Sunday, June 30, 2002

The most stable Supreme Court in history the same nine justices together for eight terms has slowly turned more fractious and less conservative on some issues.
This term the high court revamped death row, revolutionized school policies and expanded state rights, but 15 decisions that might have been expected to be decided 5-4 came in as 6-3 votes, as the usual alliances subtly shifted.
Those departures occurred in cases with lower profiles than the blockbuster decision for which the 2002 term will best be remembered, when the high court ruled Thursday that the Constitution allows vouchers backed by taxpayer funds to be used at parochial schools.
That case reflected the benchmark ideological split in place since the current lineup began in October 1994. Chief Justice William H. Rehnquist wrote the vouchers opinion joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Dissenters were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
The Rehnquist Five lined up in 10 of the 18 cases decided by a 5-4 margin this year.
For the first time in five terms, the chief justice was in the majority for 63 of the court's 75 decisions, as often as Justice O'Connor, who usually leads that category. But the chief justice and Justice O'Connor disagreed with each other on 14 cases. Also, Justice O'Connor did not participate in four cases because of investment conflicts, tying the present court's record for recusals in one term, set by Justice Breyer in his first term on the bench.
At the same time, Chief Justice Rehnquist agreed less often with Justice Thomas 53 cases as opposed to 59 last term while more frequently joining Justices Ginsburg (48 times compared with 44 the year before) and Breyer (49 times compared with 41 in the 2000-2001 term).
The splits showed up in unexpected ways, and most surprising of all was Justice Breyer, who traditionally helps anchor the court's so-called liberal wing. This term he supplied the crucial swing vote in two important 5-4 cases when those who typically vote conservative left the fold:
To allow schools to drug test the 7 million schoolchildren who join extracurricular programs, even without suspicion that a child used drugs. Justice O'Connor opposed that ruling.
To reject arguments that juries must confirm factors involved in federal guidelines for imposing mandatory minimum sentences. His vote filled the gap left when Justice Thomas voted with the liberal justices.
But 6-3 votes revealed deeper divisions.
In six of those 6-3 votes the chief justice was in a majority that did not include his usual allies, leaving Justices Scalia and Thomas in a minority.
Two were tax cases in which Justices Scalia and Thomas found themselves siding with the rarest of voting partners Justice Souter in opposing the Internal Revenue Service policy of estimating restaurant tips to impose Social Security taxes on employers, and with Justice Stevens in supporting the IRS to put a lien on Sandra Craft's Michigan house because her husband owed $482,446 in income taxes.
One issue that Justice Breyer says he will not budge on is his critical view of the 11th Amendment, which shields states from lawsuits by private citizens and an overbearing national government.
After Justice Breyer quietly opposed a string of decisions throwing out lawsuits by state employees under federal discrimination and labor laws, his anger erupted in court May 28, when a 5-4 decision said a state's sovereign immunity blocks federal commissions from adjudicating a private citizen's dispute with South Carolina. Despite a Federal Maritime Commission ruling, the court allowed the state to keep from operating a gambling ship out of Charleston.
Justice Thomas wrote the main opinion, which was one of the 10 in which the traditional five-justice conservative lineup remained solid. Justice Breyer all but accused the strict-constructionist majority of hypocrisy.
"Where does the Constitution contain the principle of law that the court enunciates?" Justice Breyer said. He said he and others in the minority will continue to seek one more vote against such interpretations of state immunity from lawsuits. They will get that opportunity next term, when the court reviews a Nevada appeal that will test whether the Family and Medical Leave Act of 1993 unconstitutionally exposed states to lawsuits.
Other major issues the court agreed to decide in the upcoming term, which begins Oct. 7, include use of California's three-strikes sentencing law, under which minor offenders get 50 years in prison; Internet sex-offender registries used by most states; use of federal anti-racketeering laws to curb abortion protesters; whether the Ku Klux Klan's free-speech rights include cross-burning; limits on class-action product-liability lawsuits; gun ownership after a conviction; and three capital cases.
Although next term's capital cases involve the peripheral issues of juries, retrial and effective counsel on appeal, the hopes of death-penalty abolitionists were raised by recent decisions on the bench and comments off it by some justices.
Thirty years after its Furman v. Georgia decision cleared the nation's death rows, reprieving 611 prisoners to life terms, the court may have opened cell doors for 797 prisoners in nine states where judges decide crucial death-sentence issues.
Although questions were immediately raised about making the 7-2 decision in Ring v. Arizona retroactive, it appeared to offer another chance at life for 168 killers in Arizona, Colorado, Idaho, Montana and Nebraska. Some or all of the 629 condemned prisoners in Florida, Alabama, Delaware and Indiana, are also expected to seek resentencing.
With only Justices Rehnquist and O'Connor dissenting, the court held that only juries, not judges, can decide the factors that the judge uses to impose a death sentence. In those nine states, judges either make decisions alone or with nonbinding advice from juries that do not disclose findings.
In one of this term's 6-3 decisions, the court removed mildly retarded murderers from the category of those who might face execution. At the time, 20 of the 38 death-penalty states allowed executing murderers who were mildly retarded.


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