Abstract: THE SUPREME COURT closed out its 2000 term in June after issuing seventy-nine opinions and agreeing to take up more questions of interest to students and educators alike. Among the issues already slated for review after the 2001 term opens on October 1 are cases that could decide the future of affirmative action, the death penalty, and online pornography. Looking Back Last term was contentious for the justices, and not just because of the December decision in Bush v. Gore, No. 00-949-the case that effectively decided the 2000 presidential election. It determined both that the Florida recount procedures established by the Florida Supreme Court violated the constitutional guarantee of equal protection and that the Florida courts did not have time to modify their procedures in order to count the votes in a constitutional manner. Throughout the term, Chief Justice Rehnquist and Justices Scalia and Thomas usually saw eye to eye, whereas Justices Stevens, Souter, Ginsburg, and Breyer often disagreed with them. Time and again, these two coalitions faced off to match wits, reasoning, and judicial philosophy with a sometimes obvious testiness and impatience. There is no reason to think that the justices do not respect one another on a personal level, but their judicial disagreements seemed especially sharp last term, with, several justices going so far as to question whether their colleagues' arguments were intentionally disingenuous. Dissenting in Bush v. Gore, Justice Stevens complained, What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. Dissenting in United States v. Mead Corporation, No. 99-1434, Justice Scalia objected to the majority's pretense that its opinion was nothing more than an application of prior case law. With a few notable exceptions (including Kyllo v. United States and Atwater v. City of Lago Vista, discussed later), the 2000-2001 term thus seemed to reflect a hardening of predictable views on both the right and left. As Drake University Law School Professor Thomas E. Baker noted in the August 2001 issue of ABA's Preview of United States Supreme Court Cases, all nine justices have been together for seven years now, time enough to fine-tune their own judicial philosophies while at the same time to become familiar with their colleagues' oft-expressed views. (Justice Breyer, the court's most recent appointment, took office in 1994.) Thus, with the same conservative three often lined up against the same moderate-to-liberal four, the wild cards in most of the close cases were held by Justices O'Connor and Kennedy. For the most part in 2000-2001, wherever these two moderate-to-conservative justices went, so did the Court. In the end, in fact, an impressive twenty-five cases were decided by 5-4 margins. In fourteen of those decisions, both Kennedy and O'Connor joined Rehnquist, Scalia, and Thomas to form a conservative majority. In eight others, one or the other of the two justices joined Stevens, Souter, Ginsburg, and Breyer to provide the Court's liberal wing with the margin of victory. Because they seldom found themselves on the losing end of any issue, O'Connor and Kennedy also issued the fewest dissents on the Court. With Justice O'Connor dissenting in only eight cases and Kennedy in just seven, Court watchers and litigants alike have begun to zero in on these justices as the two whose concerns must always be taken very seriously indeed in the areas of particular interest to high school students: free speech and privacy. …
Publication Year: 2001
Publication Date: 2001-10-01
Language: en
Type: article
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