Archive for Sunday, June 30, 2002

21 Supreme Court cases decided by 5-4 vote

Ideological division in judicial branch most profound in church and state cases

June 30, 2002


— The Supreme Court, in the term that ended last week, narrowed protections for people with disabilities and raised soul-searching concerns about the death penalty.

And in the last decision of the 2001-2002 court term, the justices declared that state aid for parochial school tuition could be constitutional under the right circumstances a ruling that fundamentally remaps the boundary of church and state.

Like 20 other cases this term, the voucher case was decided by the barest 5-4 majority. That continues a trend and reflects an ideologically polarized court, with its conservative bloc often holding sway. The split is most profound on issues such as church and state and states' rights, Harvard law professor Laurence Tribe said.

"In both of these areas, however, the 5-4 split within the court has become even more firmly entrenched, with the dissenters making clear that they disagree so profoundly with the majority that they would seize the first opportunity to overturn the leading precedents in both realms," he said.

The voucher case, like the greatest share of the other 5-4 cases, included Chief Justice William H. Rehnquist and four others in the majority, and the four relative liberals in dissent.

24 decisions unanimous

The court did decide 24 of its 79 cases unanimously. Traditionally, this has been the goal of the court because, lawyers and many justices say, it fosters confidence in the judiciary.

As often happens, many major rulings came at or near the close of the term. Also on the last day, the court allowed the broadest drug testing yet for public school students, saying a school's interest in ridding itself of drugs outweighs student privacy rights.

Death penalty reconsidered

On capital punishment, though, it seemed to be a time of soul-searching.

In a week's time, the justices delivered two rulings that will remove inmates from death row. The court reversed an earlier ruling to declare that executing mentally retarded people is unconstitutionally cruel. It also held that only juries, not judges, can be the final arbiters of life or death in a murder case.

"The opinions of the last week show a court that is much more willing than in the past to intensely scrutinize the fairness of the ways in which the death penalty is being administered," said Lawrence Marshall, director of the Center on Wrongful Convictions at Northwestern University's law school.

The court has taken another significant death penalty case for the term that begins in the fall one dealing with rules for presenting newfound evidence late in the appeals process. Like those the court heard this year, this case does not attack the fundamental constitutionality of the death penalty for the general population.

Disability cases priority

Earlier this year, Justice Sandra Day O'Connor predicted the term would be remembered for the large number of cases arising from the Americans With Disabilities Act. In five ADA-related cases, the court ruled to limit the reach of the law.

"The court tightened the screws still further on the definition of disability who gets in the door to file these suits in the first place," said Evan Tager, a Washington lawyer who represents businesses.

In what many lawyers called a sign of things to come, the court heard two cases dealing with computers, children and pornography. In the more notable ruling, it struck down key elements of a law intended as a bulwark against computer technology that allowed pornographers to simulate child sex without using actual children.

The court said the law unconstitutionally limited free speech because it also swept up scenes in mainstream movies or other art, in which youthful sex is pantomimed or is filmed using adults disguised as children.

Conservatives outside the court were outraged, and they had company.

"We are at least rapidly approaching the time when government will not be able to prosecute anyone for the making of these (pornographic) films, because it will be impossible to prove that it was a real child" and not an image cooked up on a laptop computer, said Seth Waxman, who was former President Clinton's top Supreme Court lawyer.

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