Archive for Sunday, June 29, 2003

Supreme Court takes step back from conservative trend

June 29, 2003


— In blockbuster rulings on affirmative action and gay rights and in less heralded decisions this term, a Supreme Court dominated by conservative jurists looked less conservative than it has in years.

"On vitally important issues to social conservatives, they suffered serious defeats this term," said Thomas Goldstein, a Washington lawyer who specializes in the Supreme Court. "There was not a single victory to balance it out."

Serendipity plays a role in the mix of cases the court hears in a given year, and it can be misleading to look at any one year in isolation.

Still, the 2002-2003 session will be remembered for its exceptions to the conservative rule, lawyers and law professors said.

In the term that ended last week, the high court bolted from a decade of rulings striking down or limiting racial formulas, and upheld the continued use of race as a factor in university admissions.

The justices also made an about-face on the question of whether gay men and women can be prosecuted for what they do in the privacy of their bedrooms. That caused one of the court's core conservatives, Justice Antonin Scalia, to sputter that his colleagues had "taken sides in the culture war."

No less a conservative stalwart than Chief Justice William H. Rehnquist led the majority this spring in departing from the march to increase state rights at the expense of federal control in a case on family leave for state workers.

The court also upheld a legal aid financing program for the poor that political conservatives called an unconstitutional government assault on private property.

"These decisions were not as conservative as might have been expected," said Emory University law professor Robert Schapiro. "The affirmative action ruling is one I'll be teaching for many years to come."

The court's work left Douglas Kmiec, a Pepperdine University constitutional law professor and former legal adviser to Republican presidents, shaking his head.

"In affirmative action, federal-state relations, and, after the sodomy case, basic -- and I do mean very basic -- principles of constitutional interpretation have been tossed aside, not conserved."

That is not to say the court abandoned its conservative leanings.

A string of law-and-order rulings strengthened government powers to go after suspects and punish criminals. For example, the court upheld the nation's strictest "three-strikes" law, ruling that a California man's 50-years-to-life sentence for stealing videotapes was not unconstitutionally harsh.

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