THE 2000-2001 SUPREME COURT TERM IN REVIEW, PART II
Individual Rights: How The Justices Defied Expectations

By MICHAEL C. DORF
Wednesday, Jul. 11, 2001

In Part Two of a two-part series on the past Supreme Court term, Professor Dorf — an expert on constitutional law — discusses several important cases on constitutional rights. Part One of the series discussed the historic decision in Bush v. Gore, as well as several cases relating to the structural Constitution. — Ed.

Conventional wisdom divides the current Justices of the United States Supreme Court into three camps. First, there are the staunchly conservative Justices: Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. Second, there are the moderately conservative "swing" Justices, Sandra Day O'Connor and Anthony Kennedy. Finally, there are the moderately liberal Justices: John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

These categories broadly describe the Justices' political views. Yet political ideology does not neatly translate into judicial philosophy, as was apparent in a number of the most interesting cases the Supreme Court decided over the past year.

Indeed, were it not for the long shadow cast by Bush v. Gore, the 2000-2001 term of the U.S. Supreme Court might well be remembered for the unusually large number of cases in which "conservative" Justices voted for "liberal" outcomes and vice-versa.

Justice Stevens: "Conservative" on Sex Discrimination

In INS v. Nguyen, the Court, by a 5-4 margin, rejected an equal protection challenge to a provision of the Immigration and Nationality Act.

The provision made it easier for U.S.-citizen mothers to transmit U.S. citizenship to their children born out of wedlock than for U.S.-citizen fathers to do the same. The Court's ruling showed greater deference to the government's use of an explicit sex classification than it has shown in many years.

The decision prompted Justice O'Connor — writing in dissent for herself, the Court's only other female Justice, Ruth Bader Ginsburg, and Justices Souter and Breyer — to describe the majority opinion as "a stranger to our precedents." Yet had Justice Stevens, probably the Court's most liberal member, voted with Justice O'Connor, the result would have been different.

Why did Justice Stevens join the conservatives in Nguyen? Although he did not write separately to explain his vote, we can find an answer in his opinion in the 1998 case of Miller v. Albright. That case presented the same issue as Nguyen, but because of procedural complications, no five Justices could agree on a single outcome. Writing for himself and Chief Justice Rehnquist in Miller, Justice Stevens opined that the distinction between fathers and mothers, as used in determining citizenship, was not based on overbroad stereotypes about men and women.

Another reason Justice Stevens joined the Nguyen majority may be his belief that "there is only one Equal Protection Clause." The Court's official doctrine uses different formal tests to evaluate discrimination claims — for example, subjecting racial classifications to "strict scrutiny" and sex classifications to something called "intermediate scrutiny." But Justice Stevens has never fully accepted this doctrinal structure, preferring to evaluate discrimination claims by asking directly whether the challenged government action is invidious in a particular case — that is, by asking whether it is the product of racism, sexism, or some other forbidden "ism." If yes, Justice Stevens says the Equal Protection Clause has been violated. If no, then he is inclined to uphold the challenged classification.

Often Justice Stevens' approach leads to liberal results, as when he has voted to uphold affirmative action to correct decades of invidious discrimination, or to invalidate invidious discrimination against gays and lesbians. But this is not always that case, as Nguyen shows.

Justice O'Connor: "Liberal" on Race Discrimination

The Court rejected another discrimination claim in Hunt v. Cromartie. In this 5-4 decision, Justice O'Connor cast the surprising decisive vote. The case was another in a series of challenges to so called "majority-minority" Congressional districts — that is, districts in which minority (African-American to be precise) voters formed a majority.

Such districts were seen by some as necessary to comply with the Voting Rights Act. Nevertheless, in each of the prior cases, Justices O'Connor and Kennedy had joined the three staunch conservatives in invalidating the use of race in redistricting. Indeed, in the first such decision, the 1993 case of Shaw v. Reno, Justice O'Connor wrote the majority opinion decrying what she termed an illicit "effort to segregate the races for purposes of voting."

In Cromartie, however, Justice O'Connor jumped ship, joining the moderately liberal Justices in upholding a district in which, the Court said, the race of voters was considered only insofar as it indicated party affiliation.

To a much greater degree than southern white registered Democrats, African-Americans reliably vote for the Democratic candidate in Congressional elections, and that fact, rather than race for its own sake, was the inspiration for the North Carolina district at issue. Racial gerrymandering, the Court said, may be inherently suspect, but political gerrymandering is as American as apple pie.

The Cromartie decision is a bit puzzling. In most contexts, racial classifications are suspect even though they reliably correlate with some legitimate characteristic — as race, in Cromartie, correlated with political affiliation.

Suppose, for example, that the Bureau of Indian Affairs wants to hire a physician, and suppose further that (because of restricted educational opportunities), very few Native-Americans hold medical degrees. Even though a medical degree is a legitimate qualification for the job, a government policy that did not consider any Native Americans, not even those with medical degrees, would be a classic violation of Equal Protection. The fact that race is being used as a proxy for some other objective is, in other words, the very problem, not the solution.

This is not to say that Cromartie is necessarily wrong. Critics of the redistricting decisions have argued, among other things, that the white plaintiffs in these cases have not suffered any judicially cognizable injury. These critics note that generally, to prevail on a claim of "vote dilution," a plaintiff must show that he and people like him have systematically been deprived of the opportunity to affect electoral politics, a difficult claim to make with respect to southern whites.

It is possible that Justice O'Connor's about-face in Cromartie reflects an accession to the critics. But that seems unlikely given that Justice Breyer's majority opinion, which she joined, purports to apply, rather than repudiate, the earlier decisions. How, then, to explain her switch?

Perhaps Justice O'Connor has grown weary of the endless litigation her original redistricting decision seems to have inspired. Cromartie was the fourth case to reach the Supreme Court involving more or less the same North Carolina district. Decided after the completion of the 2000 census, it involved redistricting based on the 1990 census. By seemingly easing up on the scrutiny applicable to race-based redistricting, Justice O'Connor may have been, in effect, saying enough is enough.

Justice Souter: "Originalist" on Search and Seizure

Search and seizure cases provided another example of cross-ideological alliances. In Atwater v. Lago Vista, the moderate to liberal Justice Souter authored a 5-4 opinion — for himself, the three staunch conservatives, and Justice Kennedy — upholding the power of a police officer to make a custodial arrest for a minor traffic violation.

The case was notable not merely for the widely criticized result, but for the uncharacteristically originalist methodology Justice Souter employed (as is explained in my May 2 column).

Justices Scalia and Thomas: "Liberal" on Criminal Procedure

In another search-and-seizure case, Kyllo v. United States, the Court ruled, 5-4, that a thermal imaging scan of a house is a "search" within the meaning of the Fourth Amendment, and thus the police cannot use the device without obtaining a warrant.

On remand, the result will likely be the invalidation of Kyllo's guilty plea to a charge of manufacturing marijuana. Who were the soft-on-crime "liberals" behind this decision? The majority opinion was written by Justice Scalia and joined by Justice Thomas (as well as Justices Souter, Breyer, and Ginsburg).

One can find earlier examples of Justice Scalia's liberal streak in matters of criminal procedure. In the 1990 case of Maryland v. Craig, he dissented from a decision permitting a six-year-old victim of child abuse to testify by closed-circuit television.

Justice Scalia thought this procedure violated the accused's Sixth Amendment right to confront adverse witnesses. He wrote a dissent that was joined by liberal Justices William Brennan and Thurgood Marshall, as well as Justice Stevens.

These and other decisions underscore that the protections the Constitution affords to persons suspected or accused of crime should not be understood in ideological terms. Many of those safeguards are there to protect the innocent from unnecessary invasions of their privacy and wrongful imprisonment. A ruling against Kyllo, after all, would have licensed invasions of privacy of everyone, not just drug manufacturers.

Overview of the Term's Rights Cases

I do not mean, of course, to deny that there is any truth to the conventional wisdom about the relation between the Justices' political views and their legal positions. Some of the most high-profile rights cases fit the familiar pattern.

For example, in INS v. St. Cyr, Justice Kennedy "swung" to the moderately liberal Justices to create a 5-4 majority. The case held that habeas corpus may still be invoked by to aliens who pled guilty to crimes before Congress overhauled the immigration laws to expedite deportations.

In other words, Congress' action did not, according to the Court, have retroactive effect. Thus, "grandfathered-in" aliens may still use the Great Writ to challenge the Attorney General's contention that he lacked discretion to withhold deportation.

Likewise, in Zadvydas v. Davis and FEC v. Colorado Republican Federal Campaign Comm., Justice O'Connor swung to the moderately liberal Justices to create 5-4 majorities.

Zadvydas held that if there is no reasonable probability that some foreign country will accept an otherwise-deportable alien, the government cannot hold him in detention indefinitely. Colorado Republican upheld limitations on a political party's ability to coordinate its spending with candidates for federal office.

Conversely, in Good News Club v. Milford Central School and Palazzolo v. Rhode Island, both Justices O'Connor and Kennedy swung to the conservative side.

In Good News Club, the majority ruled that a public school district violated the free speech rights of an Evangelical Christian group by preventing the latter from using school facilities after classes were over.

In Palazzolo, the Court found that a landowner could invoke the Fifth Amendment's protection against uncompensated government confiscation of private property ("takings") to challenge a state environmental regulation prohibiting development on the property, even though the regulation went into effect before the landowner purchased the property.

These and other cases reveal that the ideological divisions among the Justices are real, and that they sometimes play the decisive role in the Court's judgments. But the key word is sometimes.

Even some of the cases that are explicable in ideological terms reveal subtle shadings just beneath the surface. In Good News, for example, Justice Breyer joined the conservatives to make the vote 6-3.

And in Palazzolo, Justices O'Connor and Scalia each wrote separate concurring opinions expressing differing views on whether the fact that a landowner purchased his property after the challenged regulation went into effect, and thus had notice of the regulation, could ever defeat his takings claim. O'Connor said yes, Scalia no.

Those who would characterize the Supreme Court as simply another political institution overlook the substantial degree to which the Justices struggle to apply legal principles independently of their political or ideological impact. That the Justices sometimes fail in this struggle is certainly no reason to despair of the possibility of an independent judiciary.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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