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The calm before the storm

By Erwin Chemerinsky


The Supreme Court’s term that ended June 27 produced remarkably little change in the law. In the most controversial areas — such as whether the government may take private property to increase economic development, whether Ten Commandments displays on government property violate the Establishment Clause, whether federal law may criminally prohibit and punish private possession of marijuana for medicinal purposes — the Court made no new law, but instead applied long-standing precedent.

Justice O’Connor
Justice O’Connor

Interestingly, more often than not, the more liberal wing comprised of Justices Stevens, Souter, Ginsburg and Breyer prevailed by attracting the support of either Justices O’Connor or Kennedy.

Indeed, of the 76 decisions, 19 were decided by a 5-4 margin, and in only four of these closely divided decisions was the majority comprised of Rehnquist, O’Connor, Scalia, Kennedy and Thomas. This is far different than most years when this group is most often the majority in 5-4 decisions.

But, of course, much may change very soon with Justice O’Connor being replaced. She was the fifth vote for the majority in so many areas in recent years, including in upholding affirmative action by colleges and universities, upholding campaign finance laws, striking down restrictions on abortion and limiting religious symbols on government property. 

In many ways then, October Term 2004 may well be remembered as a calm year before the storms of a possible Senate fight over a new nominee and countless areas where litigants will seek to have the Supreme Court reconsider its positions with a new justice on the bench.


Perhaps the most controversial case of the year, and definitely the most misreported, was Kelo v. City of New London, 125 S.Ct. 2655 (2005).

The takings clause of the Fifth Amendment allows the government to take private property for “public use” so long as it pays “just compensation.” In Kelo, an economically depressed city sought, through a private economic development corporation, to take private property for purposes of a new economic development project. The owners, who did not want to sell their property, objected that it was not for “public use.” 

The Supreme Court, in a 5-4 decision, ruled in favor of the city. The Court relied on long-standing precedents holding that a taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public.

The Court said that the city’s action was for public use because it reasonably believed that its action would create more than a thousand new jobs and increase economic growth.

The media presented this case as a dramatic change in the law, while in reality the Court applied exactly the principle that was articulated decades ago.

Certainly, there can be disagreement over whether the government should take private property for purposes of economic development, and California law already restricts this, but it is important to recognize that the case in no way changed the law in this area.

First Amendment

The Supreme Court likely took two cases involving Ten Commandments displays in the hope of offering clarity to lower courts on an issue that is arising in litigation across the country: When may the government place religious symbols, such as Ten Commandments displays, on government property? Unfortunately, the decisions in McCreary County, Kentucky v. ACLU of Kentucky, 125 S.Ct. 2722 (2005) and Van Orden v. Perry, 125 S.Ct. 2854 (2005), did little to clarify the law in this area. 

In McCreary County, the Court, by a 5-4 decision, ruled that Ten Commandments displays in Kentucky county courthouses were unconstitutional because the government had the impermissible purpose of advancing religion. The counties were clear that they wanted the Ten Commandments posted because of their religious content and significance. In Van Orden, which I argued and lost 5-4, the Court, without a majority opinion, upheld the constitutionality of a six-foot high, three-foot wide Ten Commandments monument that sits between the Texas State Capitol and the Texas Supreme Court.

In trying to make sense of these decisions, it is important to remember that only one justice — Stephen Breyer — saw a distinction between them.  Four justices — Rehnquist, Scalia, Kennedy and Thomas — would have upheld both displays. Four justices — Stevens, O’Connor, Souter and Ginsburg — would have invalidated both. Only Breyer was in the majority, both in striking down the Kentucky display and in upholding the Texas monument.

What conclusions can be drawn from these decisions? First, the Court reaffirmed the test for the Establishment Clause that it articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the Lemon test, the government violates the Establishment Clause if it has the purpose of advancing religion, or if the primary effect is to advance or inhibit religion, or if there is excessive government entanglement with religion. For many years, conservatives such as Justice Scalia have urged the overruling of the Lemon test. But in McCreary County, Justice Souter’s majority opinion emphatically reaffirms and applies the Lemon test.

Second, the government is limited in its ability to display religious symbols on government property. A majority of the justices agreed that the government cannot place religious symbols on government property in a manner that symbolically endorses religion.

Third, in determining whether a particular display is a symbolic endorsement of religion, courts must look at its history, its purpose and its context. For Justice Breyer, these were the key factors that distinguished the Kentucky and the Texas displays. But this means that every religious symbol on government property will have to be analyzed based on its unique facts and circumstances.

American society is deeply divided over issues of religion and government. Some believe strongly that government should be strictly secular and religious symbols rarely belong on government property. Others believe that excluding religious symbols is impermissible hostility to religion and religious symbols should be allowed on government property essentially without limits. These contrasting, strongly held views ensure that this issue will continue to divide the Court, and society, for years to come.

Commerce clause

In Gonzales v. Raich, 125 S.Ct. 2195 (2005), the Court held that Congress constitutionally may use its power to regulate commerce among the states to prohibit the cultivation and possession of small amounts of marijuana for medicinal purposes. Although California has created an exemption to its state marijuana laws for medical uses, no such exemption exists to the federal law. In a 6-3 decision, with the majority opinion written by Justice Stevens, the Court upheld the federal law.

Justice Stevens explained that for almost 70 years, Congress has had the authority to regulate activities that have a substantial effect on interstate commerce. The Court concluded that, cumulatively, marijuana, including that grown for medical purposes, has a substantial effect on interstate commerce.

It was not surprising that Justices Stevens, Souter, Ginsburg and Breyer voted to uphold this law. They have dissented in all of the recent decisions limiting the scope of Congress’s commerce power. Undoubtedly, they were concerned that restricting Congress’s authority would jeopardize federal environmental laws and civil rights laws adopted under the commerce power. More surprising was that Justice Kennedy was the fifth vote for the majority and that Justice Scalia concurred in the judgment. Perhaps they were concerned that invalidating this law would put other federal criminal statutes, including drug laws, in jeopardy of being struck down as exceeding the scope of Congress’s power.

Civil rights

Civil rights plaintiffs were remarkably successful this year, usually by attracting one other Justice to join with Justices Stevens, Souter, Ginsburg and Breyer. The civil rights case with the greatest practical impact will be Smith v. Jackson, Miss., 125 S.Ct. 1497 (2005), which held that disparate impact employment discrimination claims may be brought under the Age Discrimination in Employment Act.

In Jackson v. Birmingham Board of Education, 125 S.Ct. 1497 (2005), the Court ruled that a male coach of a girl’s high school basketball team could sue under Title IX of the federal civil rights laws for retaliation when he was removed from his position for complaining that his team was given less access to facilities and other resources.

In a case coming from California, Johnson v. California, 125 S.Ct. 1141 (2005), the Court held that the routine racial segregation of prisoners must meet strict scrutiny. California Prison Authority regulations require that inmates arriving at a new institution be held for 60 days in an evaluation area. During this time, they are never celled with inmates of a different race. The Supreme Court reversed the Ninth Circuit, which upheld this policy using rational basis review, and remanded the case for the application of strict scrutiny.

Death penalty litigation

In many different cases posing a variety of issues, the Court overturned death sentences. In Rompilla v. Beard, 125 S.Ct. 2456 (2005), the Court held that the failure of the defense attorney to read the files from the defendant’s prior conviction and to investigate possible abuse and mental retardation of the defendant was ineffective assistance of counsel.

In Deck v. Missouri, 125 S.Ct. 2007 (2005), the Court concluded that it violates due process to use visible shackles on a defendant during the sentencing phase of a capital case unless there is a showing of a compelling need. In Roper v. Simmons, 125 S.Ct. 1183 (2005), the Court ruled that it was cruel and unusual punishment to impose the death penalty for crimes committed by juveniles.

In two cases, the Court overturned death sentences because prosecutors had impermissibly used race in the exercise of peremptory challenges. In Johnson v. California, 125 S.Ct. 2410 (2005), the Court overturned a decision of the California Supreme Court and concluded that it is not appropriate to require a showing that it was more likely than not that race was used as the basis for peremptory challenges in order to make a prima facie case of a constitutional violation; instead, a defendant need only produce evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.

In Miller-El v. Dretke, 125 S.Ct. 2317 (2005), the Court found that the defendant proved the prosecutor violated equal protection by showing that the prosecutor’s office had a policy of striking black prospective jurors when there was a black defendant; that blacks were struck when whites with similar circumstances were not; that blacks were asked different questions than whites; and that the prosecutor “shuffled” the jury when prospective black jurors were coming up.

Each of these death penalty decisions is notable in itself, but together they show a Court that has become very concerned about how the death penalty is administered in the United States. To be sure, no justice on the current Court argues that capital punishment is inherently unconstitutional, as Justices Brennan, Marshall and Blackmun previously argued. But a majority of the current justices obviously have been affected by the work of the innocence projects and are concerned about inadequate representation in capital cases and innocent people on death row.

Criminal sentencing

From a practical perspective, the most important decisions of the year were the Supreme Court’s two decisions in United States v. Booker, 125 S.Ct. 738 (2005), which concerned the constitutionality of the federal sentencing guidelines. Five years ago, in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that any factor, other than a prior conviction, that leads to a sentence greater than the statutory maximum must be proven to the jury beyond a reasonable doubt.

Last year, in Blakely v. Washington, 124 S.Ct. 2531 (2004), the Court extended this and held that any factor, other than a prior conviction, that leads to a sentence greater than that which could be based on the jury’s verdict, or what the defendant admitted to, must be proven to the jury beyond a reasonable doubt. In United States v. Booker, the Court granted review to decide the constitutionality of the federal sentencing guidelines.

The Court produced two separate 5-4 decisions. First, the Court held that the principles of Apprendi and Blakely apply to the sentencing guidelines. Justice Stevens wrote for the Court and was joined by the four other justices who were in the majority in Apprendi and Blakely: Justices Scalia, Thomas, Souter and Ginsburg.

Justice Ginsburg
Justice Ginsburg

Second, the Court concluded that the appropriate remedy is to keep the sentencing guidelines but to make them advisory rather than mandatory, with appellate review to ensure that the sentence is reasonable. Justice Breyer wrote for the Court and was joined by the three other dissenters from Apprendi and Blakely — Chief Justice Rehnquist and Justices O’Connor and Kennedy — and by Justice Ginsburg. In other words, only Justice Ginsburg was in the majority in both Booker decisions and, unfortunately, she did not write an opinion.

The key question that affects the vast majority of criminal cases in federal court is what it means for the sentencing guidelines to be advisory rather than mandatory and how appellate courts are to decide what is a reasonable sentence.

In the six months since Booker was decided, these questions are causing great confusion and undoubtedly will require many more Supreme Court decisions for clarification.


Already on the docket for next term are cases involving controversial issues such as parental consent for abortions, restrictions on abortion protests, the ability of the federal government to block an Oregon initiative allowing physician-assisted suicide, and the constitutionality of the federal government forcing universities to allow military recruiters to use campus facilities.

But what will most attract everyone’s attention on the first Monday in October will be whether President Bush’s nominee, Appellate Justice John D. Roberts Jr. has been confirmed to replace Justice O’Connor.

Erwin Chemerinsky is the Alston & Bird Professor of Law at Duke University School of Law.

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