- The Washington Times - Sunday, June 29, 2003

Supreme Court watchers were divided sharply at term’s end on whether the expected retirement of a justice eclipsed the extent to which public opinion plays an ever-larger role in key decisions by the high court.

Despite achieving victories on blockbuster rulings favoring affirmative action and homosexual rights, the American Civil Liberties Union led critics in attacking the court’s “fundamentally conservative” outlook.

“The [decisions] probably say less about the direction of the court than the direction of the country,” said Steven R. Shapiro, national legal director of the ACLU. “The country has changed in ways that the court could not ignore.”

Other commentators suggested the country could not ignore the way the composition of the court remained unchanged — the ninth consecutive term without a retirement. The Supreme Court’s roster remains as it has since Aug. 3, 1994, the longest period without a vacancy since March 18, 1823, when the court had but seven seats.

“In retrospect, the fevered speculation about one or more justices leaving the court turned out to be the most overhyped story of the term,” said James L. Swanson, editor in chief of the Cato Institute’s Supreme Court Review.

Mr. Swanson referred to the storm of predictions about which of three justices might resign and who would take his or her place. The furor began during the 2000 presidential campaign when Ralph W. Neas, president of People for the American Way, issued his “Courting Disaster” report condemning Justices Antonin Scalia and Clarence Thomas.

The justice considered most likely to quit, Sandra Day O’Connor, continued instead to play a pivotal role in deciding the most contentious cases. She voted with the majority on all 13 cases decided 5-4.

“She rules the court at the moment. Her retirement would lead to a true sea change,” said Glenn G. Lammi, chief counsel for legal studies at the Washington Legal Foundation, a District-based think tank that focuses on constitutional issues.

“This term saw several landmark decisions which augur well for the rights of all Americans, but just one or two more votes along with Scalia and Thomas could have reversed all these rulings,” Mr. Neas said.

The overall trend in 2002-03 was to the left, said lawyer Thomas Goldstein, who tracks court statistics.

“This term saw a halt, or at least a pause, in very important conservative trends at the court, particularly affirmative action, gay rights, states rights and the Constitution’s just-compensation clause,” Mr. Goldstein said.

Leslie Thornton, a partner at the politically connected Patton Boggs law firm and former chief of staff at the Department of Education in the Clinton administration, sees a trend to the right that she said is “muddying the balance of power in Washington.”

“If you accept the notion that Chief Justice Rehnquist has quietly and steadfastly, over his many years on the bench, amassed more and more power and, therewith, quietly and not-so-quietly chipped away at the significantly more left leanings of the Burger and Warren courts,” Miss Thornton said, “what is striking today [is how], in just two years, President Bush and his administration also has quietly amassed more and more power and, through legislation and executive order, rolled back many of the nation’s more liberal laws and mores.”

The view that the changing culture often governs the decisions of the high court more than the law or the Constitution surfaced Friday at a post-term seminar sponsored by the Washington Legal Foundation.

With approval, Ron Klain of the O’Melveny and Myers law firm, a Foundation participant, said the decision striking down the Texas sodomy law reflected changing attitudes on and off the bench. He also said public opinion influences decisions restricting the liberties of immigrants since the September 11 terrorist attacks.

“We will all have an eye to the coming term to see if the court will serve as a buffer against the excesses of law enforcement — most keenly felt by minority Americans — in the effort to keep our citizenry safe from terrorism,” said Hannah Rosenthal, executive director of the Jewish Council of Public Affairs.

“There has been a change in our society, in our attitude toward gay rights and the treatment of gays in society. This is just one instance where the court is reflecting that change,” said Mr. Klain, who defended Vice President Al Gore in the 2000 election litigation.

He said public attitudes squelched outraged social conservatives, who “either said nothing or were very muted in their comments” about a term that must have disappointed them.

Among unmuted voices was that of Ward Connerly, a University of California regent who vowed to continue his fight against affirmative action, most pointedly with a voter initiative in Michigan. Another who spoke out was the Rev. Jerry Falwell, who called the decision to legalize “sexual practices common to a homosexual lifestyle” the worst day at the court for social conservatives since the 1973 Roe v. Wade decision that legalized abortion.

Jay Sekulow, legal director of the American Center for Law & Justice and a social conservative, deplored what he called the political approach to the sodomy case. “It was a grand-slam homer for the other side.”

“It is not the duty of the court to define and solve the religious issues of the day,” said the Rev. C. Welton Gaddy of Monroe, La., president of the Interfaith Alliance. “It is the court’s responsibility to deal with issues of constitutionality and not to serve as the nation’s moral compass.” He said he worries about a “religious liberty U-turn” on future cases.

One such case is the California “Pledge of Allegiance” appeal, which filing delays pushed into September. The shoe would be on the other foot, however, if justices decide the words “under God” bar its daily recitation in public schools.

The 1.7-million member Knights of Columbus asked the court to honor religious traditions by reversing the 9th U.S. Circuit Court of Appeals ruling. “Including the words ‘under God’ in the Pledge … was not some jingoistic exercise in contrasting good believers with bad atheists,” the Catholic group said.

Death sentences are another impact zone. One year ago, the high court banned the execution of retarded murderers in a decision based in part on results from about 20 state and national polls. But the justices pointedly declined to march down the same road when presented with evidence of “evolving” public opposition to executing teenaged murderers.

Both sides also argued research and polling this year in the dispute about allowing universities to choose students by race.

“Rather than root its opinions in the text of the Constitution and the intent of the Framers, a majority of the court often raises a dampened finger to see which way the cultural breezes are blowing,” Family Research Council President Ken Connor said.

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