The Supremes

By Douglas W. Kmiec
     
      The rookie year of the Roberts Court was almost a great success. Its one dark moment, Hamdan v. Rumsfeld (2006 U.S. LEXIS 5185), was a doozy. In that single case, the Court told the president he was acting illegally in creating military commissions, told Congress that the Constitution doesn't really mean what it says about its authority to limit the Court's jurisdiction-and it overruled the boss, asserting he was wrong on all counts in his lower court ruling. Chief Justice John Roberts cannot be blamed for Hamdan as he was recused, but the case illustrates why he must limit any future time out of the building.
     
      Garrison Keillor recently quipped that John Roberts has a good story: "A boy grows up in Indiana, which is a disadvantage, but he overcomes it by hard work and clean, purposeful living." By dint of this and his honed ability to build bridges and narrow rulings, Roberts yielded much consensus last term.
     
      Federal-state relations were on display in a number of cases, including yet another look at partisan gerrymandering. Only a few years ago the Justices thought this question was too political to have a judicial answer. So it was a surprise when the Court granted review in League of United American Citizens v. Perry (2006 U.S. LEXIS 5178). There, Republicans in Texas found an opportunity mid census to get even with Texas Democrats for earlier one-sidedness, to which one would expect a Roberts Court to say little. It did. Nothing in the Constitution precludes mid-census redistricting-and no one could come up with a way to take politics out of politics.
     
      The Court found two small exceptions to state sovereign immunity under the Eleventh Amendment. It held that Congress can use its Article I bankruptcy power to allow lawsuits against the states. (Central Virginia Cmty. Coll. v. Katz, 126 S. Ct. 990.) And state immunity notwithstanding, a disabled prisoner confined to a cell so narrow that his wheelchair can maneuver only one way has the opportunity to prove damages against the Peach State under the Americans with Disabilities Act. (United States v. Georgia, 126 S. Ct. 877.)
     
      Openly anxious about Congress again pressing the limits of the commerce power, the Court cut back on sweeping regulatory interpretation. In a 414 ruling in Rapanos v. United States (2006 U.S. LEXIS 4887), Justice Anthony Kennedy played his much-anticipated man-in-the-middle role. He tempered the tone of Justice Antonin Scalia's plurality opinion, which labeled the U.S. Army Corps of Engineers "despotic" for sentencing John Rapanos to 63 months in prison for violating the Clean Water Act by moving around dirt on land that was neither water nor adjacent to it.
     
      The Court also pulled the plug on John Ashcroft's efforts to undermine Oregon's assisted suicide law. Ashcroft interpreted "legitimate medical practice" as related to-get this-healing. He then used his authority under the drug laws to yank the prescription-writing authority of doctor-terminators. Gonzales v. Oregon (126 S. Ct. 904) is a veritable treatise on when interpretative rules are entitled to deference-which is not after the states were told to make up their own minds on this ethically sensitive topic in Washington v. Glucksberg (521 U.S. 702 (1997)). In Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal (126 S. Ct. 1211), the new Chief Justice opined for a unanimous Court that Congress failed to establish a compelling interest for denying a small, unpronounceable religious sect a tiny amount of equally unutterable, but hallucinogenic, tea.
     
      The major free speech case of the term, Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (126 S. Ct. 1297), was also unanimous-the Roberts Court's highest ambition. It held that Congress could not only condition public money on equal access for military recruiters, it could also mandate this by virtue of its power to raise an army. The rejection of compelled speech and associational claims, which the entire Court called a "stretch," was almost anticlimactic.
     
      The Court also put a cork in whistleblower claims. It ruled that public employees retain a qualified right to talk about matters of public concern, but five justices refused to extend constitutional protection to speech that is an aspect of an employee's duties. (Garcetti v. Ceballos, 126 S. Ct. 1951).) The wisdom of the result is hotly contested-as is what is and is not a "job duty." Vermont's attempt to limit campaign expenditures and contributions fell to precedent. (Randall v. Sorrell, 2006 U.S. LEXIS 5161.) Cacophony rather than unanimity governed here, with the new fellas curiously at Justice Stephen Breyer's side rejecting contribution limits, but only when they are terribly low. Justice Samuel Alito hinted he would be open to reconsidering Buckley v. Valeo (424 U.S. 1 (1976)), upon which the complexity of campaign regulation is built. Justices Clarence Thomas, Scalia, and possibly Kennedy are amenable to Buckley's demise in the name of protecting money as speech. Justice John Paul Stevens would do the opposite because, to him, failing to limit spending either makes public office the sole preserve of the rich or fosters perpetual fund-raising. At 86, Stevens is the oldest member of the Court-and on this issue, the wisest.
     
      In the area of criminal justice, the Court opened the door for death row inmates to use a civil rights action to challenge the "cruelty" of lethal injection. (Hill v. McDonough, 2006 U.S. LEXIS 4674.) But a clear majority believes it is up to the states to say whether or not the death penalty is "moral." With a vote of 5 to 4, the Court sustained a death sentence even when the aggravating and mitigating factors were equal. (Kansas v. Marsh, 2006 U.S. LEXIS 5163.) The Court also found 911 calls to be admissible, nontestimonial evidence. (Davis v. Washington, 2006 U.S. LEXIS 4886.) And in Hudson v. Michigan (2006 U.S. LEXIS 4677), the Court, 54, did not extend the exclusionary rule to evidence obtained with a search warrant, but without knocking first.
     
      At term's end, the Roberts Court remains a body in transition. The old guard of liberal and conservative persuasion has not changed. But the rookies largely transcended partisan labels. Chief Justice Roberts and Justice Alito, keeping their opinions rigorously focused on the issues, eschewed the temptation to restate the law in their likenesses. How refreshingly judgelike.
     

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