The Supreme Court's Most Recent Term:
A Set of Narrow Rulings Avoids Some Tough Questions, But Provides Interesting Fodder For Discussion

By VIKRAM DAVID AMAR

Friday, Jul. 09, 2004

Note: This column is part One of a two-part series looking at the recently concluded Supreme Court Term. - Ed.

The Supreme Court Term that just ended was quite unusual. There were tons of high- profile cases, but not really a lot of blockbuster opinions.

Indeed, many if not most of the year's most potentially momentous cases got decided quite narrowly, or not at all. Nevertheless, this Term - if not momentous - was certainly interesting, as I will explain.

Partisan Gerrymandering: The Court Decides Not to Decide

Consider first Vieth v. Jubelirer - the case challenging the drawing of Pennsylvania's congressional districts on the ground that it was excessively partisan. There, the Court ruled only that there are no judicially manageable standards at this time to resolve such claims.

As Michael Dorf has pointed out in a column for this site, Justice Kennedy's crucial fifth vote was accompanied by a concurrence in which he held open the possibility that judicially administrable standards could in fact be developed later. In effect, then, the Court decided simply not to decide whether it will ever police overly zealous political gerrymandering.

The "Under God" Pledge of Allegiance Dispute: Again, the Court Punts

The Court decided not to decide again in the (in)famous "one nation under God"/Pledge of Allegiance case - Elk Grove Unified School Dist. v. Newdow.

There, the Court held only that under California law Mr. Newdow's custodial arrangement with his daughter was so complicated as to make federal court adjudication of his constitutional claim imprudent. As a result of this disposition, the Court was able to undo the thorny Ninth Circuit ruling invalidating the reference to God, without having to deal with the tricky Establishment Clause issue Mr. Newdow raised.

Note, however, that four Justices - Justice Scalia who recused himself because he had expressed his merits views, and three other Justices who wrote separately to reject Mr. Newdow's Establishment Clause challenge on the merits - did indicate that they believe the phrase "one nation under God" poses no constitutional problem. Future challengers to this aspect of the Pledge therefore will start with a 4-0 handicap. And that handicap, in turn, may influence how receptive lower courts are to any such challenges.

I fully understand why a majority of Justices dodged the tough merits question in Newdow. Writing a coherent and narrow opinion either way - that is, either upholding or invalidating the reference to God -- would be tough. Doubtless, the Court didn't want to give either side in the battle over how much religion there can be in public life too broad and powerful a weapon.

Nonetheless, the Court's reasoning was less than ideal - for it did not seem to accord full respect to California case law and the California judiciary. If Mr. Newdow's family law status in California was uncertain at all, the Court had another option: It could have certified state law questions to the California courts, and then decided whether to proceed after getting answers to those questions. ("Certification" is a process by which federal courts can request from states' highest courts answers to unclear questions of state law. It aims to preserve the states' highest courts' roles as the ultimate arbiters of the law of their respective states.) Pursuing this option would, of course, have meant that the Establishment Clause issue might have been back before the Justices after certification - a prospect I'm sure none of them relished.

The Case Involving the Vice-President: The Court Sends the Case Back

Another case where the Court did not decide - and one that, like Newdow, involved a flap over whether Justice Scalia should recuse himself - was the Cheney lawsuit.

The case's formal title was Cheney v. U.S. District Court for the District of Columbia. In that litigation, various public interest groups sued Vice-President Dick Cheney and his energy policy development task force under the Federal Advisory Committee Act (FACA), seeking to obtain records of the group's meetings.

But Vice-President Cheney and others objected to disclosure of these records. They argued, among other things, that applying FACA to the Vice-President, under these circumstances, would be problematic under separation-of-powers/executive privilege-type doctrines.

The Court did not resolve these statutory construction/separation-of-powers arguments. Instead, it simply remanded the case back to the lower courts, directing them to be "mindful of" and "sensitive to" the arguments that Vice-President Cheney was making.

Advantage: Cheney. But the game is not over. Further proceedings will occur in the lower courts, and the case may make its way back to the Supreme Court eventually.

Why The Court Should Have Said More About the Merits of Cheney's Arguments

It is a shame that the Court didn't say more about the strength of Mr. Cheney's arguments on the merits. In truth, they were quite complicated, for several reasons.

The invocation of Executive Privilege-like claims on behalf of an officer - the Vice-President - who is not given any executive responsibilities under the Constitution is a bit counterintuitive. The Constitution gives only two real jobs to Vice Presidents. One is to wait around in case the Presidency opens up. The other is to preside over the Senate in the meantime. Neither one of these functions seems quintessentially executive. And indeed, the function of presiding over the Senate - and casting its tie-breaking vote - seems quasi-legislative.

Moreover, Vice President Cheney's task force was gathering information for legislative proposals, not so much for executive enforcement. That, too, suggests Executive Privilege may not apply.

Finally, privilege ideas were being invoked here to conceal communications that did not occur within the Executive Department. Some of the communications at issue, instead, were between the Vice-President and persons outside the government. Ordinarily, privilege is something that protects intra-branch communications. So to the extent the privilege was claimed to cover communications with outside persons, it seems potentially problematic.

On the other hand, the office of the Vice-President has evolved since the founding. Today, each Vice-President is handpicked by the President to be a key member of his team - the one who should lead the team if something ever happens to the President. This apostolic succession idea is cemented in the Twenty-Fifth Amendment, enacted in 1967, which provides that the Vice President shall "become President" in the event of Presidential death, resignation or removal.

Under the text of the original Constitution, by contrast, a Vice President would merely discharge the "powers and duties of [the] office" of President should a President be unable. The Twenty-Fifth Amendment, then, formally concretizes an evolving importance of the Vice Presidency to the Executive Branch. As a result, it might provide a possible basis for a broader claim of Executive Privilege on the part of the Vice-President.

It's really too bad that the Court didn't begin to analyze the complex, and underdiscussed, office of the Vice-President.

The War on Terror Opinions: Important, But Narrow

In its War on Terror cases, the Justices definitely sent some messages to the Administration and the rest of the world about the necessity for judicial involvement. Nevertheless, even here, the Court's doctrinal actions were rather narrow.

The Hamdi decision held that U.S. citizen Yaser Hamdi, arrested in a combat zone abroad, was entitled to fair procedures to assess his "enemy combatant" status. But the Padilla case, which involved a U.S. citizen -- arrested in the U.S -- who was deemed an "enemy combatant," was dismissed outright on technical jurisdictional grounds. (The Court held the New York venue was improper). Plainly, the Hamdi precedent will benefit Jose Padilla; he, too, ought now to have a process in which to challenge his "enemy combatant" status. But Padilla's case also arguably raised additional questions that, for now, remain unanswered.

Meanwhile, the Guantanamo case was decided. But it too was resolved only on technical jurisdictional grounds - and as narrowly as possible.

Specifically, the Court ruled that those being held in Guantanamo could challenge the legality of their detention by seeking writs of habeas corpus from federal judges. But the Court gave no real hint of what standards - procedural or substantive - should govern those habeas proceedings to come.

A Quiet Term that Followed a Term Full of Pathbreaking Decisions

The list of cases in which the Court punted this Term could go on and on. (For example, in Dretke v. Haley, the Court declined to resolve a meaty habeas question concerning factual innocence.) Inevitably, avoidance and narrowness will be one memorable characteristic of this Term.

And perhaps that is not entirely surprising. Last Term, after all, was truly path-breaking, with cases like Grutter, the University of Michigan affirmative action case; Lawrence, the Texas case involving a criminal prohibition on gay sex; and McConnell, the case challenging the Bipartisan Campaign Finance Reform Act heard in September, before the start of the October 2003 Term.

After a year of such doctrinal importance, the Court might have wanted to generate less law than it could have this Term, especially given the pendency of what promises to be a very contentious Presidential election campaign.

An Exception: The Court's Sentencing Decision Makes Waves

There were, of course, exceptions to the Court's disinclination to strike out in new directions. For instance, in Blakely v. Washington, the Court held - to the surprise of most observers, me included - that almost all facts that could have the effect of increasing a criminal defendant's sentence must be presented to jury, and proven beyond a reasonable doubt. (The defendant can waive this right, but if he does not, such presentment and proof is mandatory.)

That's a sea change from prior practice. Under the U.S. Sentencing Guidelines that govern in all federal trial courts, many fact findings - for instance, about the amount of drugs possessed, or the amount of money swindled -- were being made by judges, not juries. Now, however, those same facts must be presented to a jury, and proven beyond a reasonable doubt, before they can be used to increase a sentence.

The Blakely ruling is causing near-panic among prosecutors and trial courts. How to deal with now-invalid past sentences is a particularly knotty problem.

Interpreting Blakely: How It May Affect Past and Future Sentences

With respect to future prosecutions, in contrast, following Blakely seems less problematic, though it will take some additional expense and time. One possibility, flagged by Justice Breyer's dissent and discussed by Sherry Colb's column last week, would be for legislators to rewrite the sentencing laws to authorize judicial decreases from high statutory defaults rather than increases from low statutory defaults.

Another scenario, discussed on this website in Mark Allenbaugh's guest column, focuses on the prevalence of plea agreements - which are the basis for most criminal convictions. The defendant's waiver of the Sixth Amendment rights Blakely recognized can be made part of the plea agreement.

Will defendants get anything for giving up these rights? Since prosecutors have a lot of leverage in plea agreements more generally, I'm not sure that Blakely will change the basic structure of too many plea deals. But that remains to be seen.

What about cases in the sentencing pipeline?

Some of these have been pleaded out, but the defendants are awaiting sentence. Judges may well decide to rescind these pleas - on the theory that neither party could have foreseen the Blakely ruling, and thus, both reasonably relied on the pre-Blakely power that judges enjoyed. If these pleas are indeed undone, new deals - involving waivers of a defendant's Blakely rights - can presumably be struck.

But what about cases where a trial - not a plea agreement - led to the conviction? Will defendants be able to hold the prosecution to its proof, and get bottom-of-the-range sentences because prosecutors, after Blakely, can no longer prove additional facts to the judge?

And what of defendants who have already been sentenced and are serving time? Does Blakely apply retroactively? And if so, what is the remedy? Must sentences be reduced to the minimum sentence sustainable by the facts necessarily implied by the jury's guilty verdict? Must sentences be invalidated, with the defendant being able to opt for a new trial or a new plea bargain - or either?

(If Blakely is indeed retroactive, then the fact that Blakely came down the same day as the Summerlin decision will look quite ironic. In Summerlin, the Court held that its ruling in Ring v. Arizona -- that capital defendants enjoy a right to have aggravating factors determined by a jury rather than a judge -- is not retroactive.)

One thing is certain: Criminal procedure experts are going to be quite busy in the next few months trying to sort things out.

An Important Set of Decisions: This Term's Federalism Rulings

Another big area - and a signature area for the Rehnquist Court - where the Justices began to break a bit of new ground this year was federalism. I have written in a prior column about one important federalism case - Tennessee v. Lane. But Lane was only one of a number of noteworthy federalism rulings this Term.

Others include Sabri v. United States, Tennessee v. Hood, and Frew v. Hawkins. Sabri in particular, especially taken together with Lane, sets up a crucial federalism battle to be waged in the coming Terms.

In my next column, I will analyze the Court's federalism rulings this year, and discuss how the issue touched on in Sabri and Lane is being teed up for resolution by the Court, perhaps as early next year.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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