The High Court, Between the Lines

There are memorable Supreme Court terms and then there are Supreme Court terms like the one we have just witnessed. No one retired between the first Monday of October 2004 and this past Monday. There were no seminal decisions affecting the legal war on terrorism. No grand constitutional crises were averted. And nothing the justices decided is likely to fundamentally alter the political, cultural or religious tensions that now reign.

Every term, just like this term, the court reapportions, in ways large and small, rights and responsibilities, power and priorities, rules and standards, liabilities and limitations. Under the Constitution, the justices more often tinker than they dismantle, and this past term surely was a term of tinkering.

For example: Today, wine drinkers in one state may buy wine directly from vineyards in another state. Today, the feds may prosecute users of medical marijuana whose doctors have prescribed the drug for them under valid state law. Today, police may use search dogs to inspect a car even if they have no reasonable suspicion that there are drugs in that car. Today, it is clear that local officials could, for economic purposes and if state law permits it, take private property for just compensation under eminent domain powers.

These are all important rulings; they just aren’t game-changers. But just because this term did not generate the type of momentous ruling that people will be talking about for decades doesn’t mean that there wasn’t a remarkable trend or two that could be discerned from the scores of judgments rendered by the justices. The trend that resonates with me is one that surely must concern judicial and political conservatives alike.

The court’s majority this term consistently and sometimes passionately rose to protect the interests of criminal defendants, who have been some of the most consistent, if unmourned, legal “victims” of the so-called Rehnquist Revolution. And it did this to the visible and eloquent dismay of the three lions of the court’s right: the chief justice and Justices Antonin Scalia and Clarence Thomas.

This niche trend is no small thing. It suggests that a working and stable majority on the court feels a growing level of discomfort toward some of the substantive and procedural rollbacks we’ve seen in the rights of criminal defendants, especially in capital cases, over the past generation.

One year ago today, for example, a juvenile who murdered before reaching age 18 could be given the death penalty. Today, that option is no longer available. One year ago, California law made it more difficult for a defense attorney to challenge a prosecutor’s choice to exclude potential jurors. Today, that state law follows the federal constitutional rule designed to ensure that prosecutors do not exclude jurors based upon race.

One year ago, Texas prosecutors had gotten away with a shameless procedure that amounted to racial bias in jury selection. That procedure is now unconstitutional. One year ago, it was possible for a state to bar financial assistance for poor people who pleaded guilty to crimes but who then wanted to appeal their sentences. Today, that is unconstitutional.

One year ago, a prisoner seeking to raise a constitutional claim about her parole process had to overcome a nearly insurmountable appellate hurdle. Today, that hurdle, though still high, is much lower.

Taken together, these rulings say that there’s a majority on the court no longer willing to wait for lower courts or state legislators or Congress to ensure more fairness and accuracy in capital cases in particular.

These decisions are some of the practical consequences of the concerns Justice Sandra Day O’Connor raised in a speech four years ago when she said: “If statistics are any indication, the system may well be allowing some innocent defendants to be executed.... Serious questions are being raised about whether the death penalty is being fairly administered in this country.”

This is not to say that the court suddenly has gone “soft on crime.” There were plenty of rulings this past term that count as “tough on crime” verdicts. Criminal defendants and convicted felons still have it much tougher on appeal than in decades past. But the relentless “refinement” (read: narrowing) of procedural rules governing criminal cases seems to have ebbed. The legacy of the Rehnquist court is secure. But it is still being shaped -- and more subtlety than anyone might have expected.

The world the Gang of Nine will return to on the first Monday in October clearly will be different than the one they leave behind today.

The question, however, is whether the faces on the bench will be different a few months from now. If so, a new era may begin. If not, the Rehnquist court will give us an opportunity to see whether this term’s trend continues or just fades away.