Theodore B. Olson*
In the last issue of this newsletter, we examined in detail the
major federalist decision from October Term 1995, Seminole Tribe
of Florida v. Florida. In this issue, we examine more generally
the Supreme Court's work during its last Term. This article, written
by Federalism and Separation of Powers Practice Group Chairman Theodore
B. Olson, is based upon a speech originally delivered by Mr. Olson
last year at a meeting of the Los Angeles Lawyers Division of the
Federalist Society. Aftr examining the voting blocs within the Court
and some of its major decisions within the last Term, Mr. Olson
reaches the sobering conclusion that we are likely to be stuck with
a "living" Constitution for some time to come.
Before turning to specific cases decided during October Term 1995,
it may be helpful first to examine some statistics and general information
about the Court's performance.
The Court handed down opinions in 75 cases this Term. It has been
receiving about 7,000-7,500 petitions each Term, so that means that
the Court accepts about 1% of the cases presented to it. Since a
disproportionate number of the cases granted review involve the
U.S. Government, and since many involve criminal or prisoner cases,
the odds that the Supreme Court will grant review in a particular
case between private litigants are quite low.
A decade ago, the Court was hearing about 150 cases each year.
Its case load today is just about half that level. There has been
a great deal of speculation about why this is and what it means.
No one except the Justices knows for sure, but it may be attributable
in part to this Chief Justice's belief that the Court formerly took
on too many cases, reached out to meddle in too many areas, and
that the quality of the Court's work suffered as a result. It is
surely not fair to measure the Court by standards imposed on private
industry, but if a business used the same resources and time while
cutting its productivity by 50%, people would want to know whether
there had been a comparable increase in the quality of the product.
In other words, are the decisions and opinions better today than
they were ten years ago? I will leave it to each reader to form
his own conclusions on that score.
There have been no new appointments to this Court for two years
now and there are no apparent prospects for changes at least until
the end of October Term 1996. Chief Justice Rehnquist has now completed
his 24th year on the Court, ten as Chief Justice. We have had 42
presidents, but only 16 Chief Justices, only eight of whom have
served as long as ten years in that role. To illustrate how time
flies, Justice O'Connor, the first woman Justice, has served 15
years, Justice Scalia has now served ten, and Justice Thomas completed
his fifth term when the October 1995 Term ended.
This is the most active Court during oral argument that most practitioners
can recall. Justices Brennan, Blackmun, and Marshall seldom interrupted
oral argument with questions, and several other Justices were relatively
reticent. Now, eight of the nine can be counted on to participate
actively in oral argument. Justice Thomas is the lone exception.
An advocate, as you know, gets 30 minutes to present his or her
case. It is now rare if more than a minute goes by before the first
question from the Justices. And many arguments consist of nothing
but a running dialogue between Justices--in the form of a constant
stream of questions, with the advocate ending up looking, and feeling,
like a Christian who has been served up as entertainment for eight
There are roughly three blocs of votes on the Court in controversial
cases. On the "conservative" side, Justices Scalia and
Thomas usually vote together, generally (but not always--especially
last Term) accompanied by the Chief Justice. On the "liberal"
side, Justices Stevens, Souter, Ginsburg, and Breyer generally may
be counted on to be on the same side. (Note that two of the "liberal"
Justices--Stevens and Souter--were appointed by Republicans.) This
leaves Justices Kennedy and O'Connor as "swing" votes.
For example, in Romer v. Evans, 116 S.Ct. 1620 (1996), the controversial
case involving Colorado's Amendment 2, Justices Kennedy and O'Connor
voted with the "liberals," delivering an astonishing victory
for the proposition that it violated the Equal Protection Clause
for Colorado citizens to prohibit special legal protections for
homosexuals. The same thing happened in the Virginia Military Institute
case (United States v. Virginia, 116 S.Ct. 2264 (1996))--although
in that instance, the Chief Justice wound up joining the majority
there as well. In the independent-contractor First Amendment cases
(Board of County Comm'rs, Wabaunsee County v. Umbehr, 116 S.Ct.
2342 (1996), and O'Hare Truck Service Inc. v. City of Northlake,
116 S.Ct. 2353 (1996)), the Chief Justice again went along with
the liberal/moderate bloc, leaving Justices Scalia and Thomas alone
On the other hand, in the redistricting cases (Bush v. Vera, 116
S.Ct. 1941 (1996), and Shaw v. Hunt, 116 S.Ct. 1894 (1996)) and
the key 11th amendment case (Seminole Tribe of Florida v. Florida,
116 S.Ct. 1114 (1996)), Justices Kennedy and O'Connor joined their
more conservative colleagues to produce 5-4 majorities in those
Thus, for difficult, cutting-edge, socially charged cases, advocates
aim their arguments directly at Justices O'Connor and Kennedy. The
side those two Justices favor has an excellent chance of winning.
In fact, they were each on the winning side in about 93% of the
decisions this year. But because both Justices are very skeptical
of bright line tests and clear cut rules, and tend to favor highly
subjective balancing tests, it is generally difficult to predict
how they will vote.
Typically, nearly half the Court's docket is decided unanimously
or by 8-1 votes. About 1/5 to 1/3 are decided by 5-4 and 6-3 decisions.
Thus, philosophical divisions affect the outcome in about 15 to
25 cases each year, depending upon the Court's docket. These are
the cases you read about each year.
Perhaps the Court's most important decisions last Term came in
the area of civil rights and equal protection: the Romer homosexual
rights case from Colorado, the VMI case, and the two voting rights
cases arising out of redistricting in North Carolina and Texas.
As you will recall, Equal Protection Clause cases are subjected
to one of three levels of judicial scrutiny: (1) "rational
basis," for economic line-drawing and cases where no suspect
class or fundamental rights are at stake; (2) "strict scrutiny"
where racial classifications are involved or fundamental rights
implicated; and (3) "intermediate scrutiny," where distinctions
are being made along gender lines. It has been thought by most lawyers
and scholars that in most cases, "rational basis" analysis
means that the classification will be upheld, and that "strict
scrutiny" is "strict" in theory but "fatal in
fact." Intermediate scrutiny cases have gone either way.
While purporting to adhere to these three tests, the Justices seem
to be in the process of blurring the distinctions between them.
In the 1994 Term, in the racial set-aside government contracting
case (Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995)),
the Court said that "strict scrutiny" will not always
be fatal in fact. This year, in Romer, the Court applied a rational
basis test and nevertheless had no trouble finding that the Colorado
initiative was unconstitutional. And in the VMI case, the Court
explicitly rejected the government's argument that strict scrutiny
should apply in gender discrimination cases, but emphasized that
gender classifications would have to be supported by an "exceedingly
persuasive justification," which to most observers looked and
sounded and seemed in its application to be nothing short of "fatal-in-fact"
strict scrutiny in the gender classification area.
Romer, in particular, makes fascinating reading--both Justice Kennedy's
opinion for the Court and Justice Scalia's passionate dissent. The
Colorado constitutional amendment did no more than repeal municipal
laws, and prohibit future laws, that gave "preferences"
or "protected status" on the basis of "homosexual
orientation." Justice Kennedy for the Court found that this
was an "exceptional" and "invalid form of legislation"
because it singled out one class of persons to be handicapped in
working within the political process to protect or advance its rights.
He called this "unprecedented in our jurisprudence" and
stated that "it is not within our constitutional tradition
to enact laws of this sort."
Justice Scalia assailed Justice Kennedy's opinion, asserting that
it was totally unconnected with any prior Equal Protection Clause
decision, and wholly inconsistent with thousands of laws singling
out various classes such as drug addicts, smokers, gun owners, motorcyclists,
and persons who wear animal fur. He reminded the Court that the
decision was irreconcilable with the Court's decision a few years
ago in Bowers v. Hardwick, 478 U.S. 186 (1986), upholding sodomy
laws. How, he wondered, could it be that a state may make homosexual
practices illegal but may not constitutionally prohibit special
treatment for those who engage in such practices? He denounced the
opinion's "heavy reliance upon principles of righteousness
rather than judicial holdings." 116 S.Ct. at 1629.
In the VMI case, Virginia argued that it met the intermediate scrutiny
test because it had established that education is an important government
objective, that single-sex education was a proven valuable method
to educate some young people, that most of its higher education
dollars went into coeducation, and that only a small fraction of
its budget went to single-sex colleges for men and women that had
been found to be equally effective for the students attending these
programs. It argued that if the public could not support some single-sex
education as a component in its education system, then only the
wealthy would have access to this valuable educational tool.
Justice Ginsburg, writing for a 7-1 Court, rejected these arguments
and held that VMI was a unique educational opportunity and that
if even one woman could qualify for the program she could not be
denied entry on account of her sex. Again, Justice Scalia dissented.
In one of the most elegant and moving opinions I have ever read,
he pointed out that
[t]he virtue of a democratic system with a First Amendment is that
it readily enables the people, over time, to be persuaded that what
they took for granted is not so, and to change their laws accordingly.
That system is destroyed if the smug assurances of each age are
removed from the democratic process and written into the Constitution.
So to counterbalance the Court's criticism of our ancestors, let
me say a word in their praise: they left us free to change. The
same cannot be said of this most illiberal Court, which has embarked
on a course of inscribing one after another of the current preferences
of society ... into our Basic Law.
116 S.Ct. at 2292.
Romer and VMI have been explained as reflecting the Court's sensitivity
to individual rights and its hostility to any classification that
sets any group apart. But it is difficult to support that generalization.
Ironically, that Court has said that there can be no public discrimination
against single-sex sex, but that public support for single-sex education
is unconstitutional. I would have to agree with Justice Scalia that
this seems to be incorporating society's current preferences into
the Constitution and that that is a very perilous course.
In the voting rights area, the Court made it plain in Bush v. Vera
and Shaw v. Hunt that voting districts may not be created by using
race as a factor in line-drawing. These cases are very hard to decide
because political bodies bring so many considerations into the redistricting
process--especially incumbent protection--but until there is a change
in the Court, it looks as though race may not be a decisive factor
in the process despite what the 1982 amendments to the Voting Rights
Act may seem to have suggested.
A second general area of the Court's work last Term that deserves
mention is what I would categorize, for want of a better term, as
civil litigation cases. The Court gave a big boost this year to
defendants in civil litigation, and dealt some very serious blows
to the plaintiffs' bar. The first of these cases is BMW of North
America, Inc. v. Gore, 116 S.Ct. 1589 (1996). BMW was the Supreme
Court's seventh punitive damage case in ten years. After coming
close several times, the Court finally held, in a 5-4 decision,
that a "grossly excessive" punitive damage award may violate
the Due Process Clause.
In other civil justice system cases, the Court limited the applicability
of the Seventh Amendment's right to a civil jury trial, both in
patent cases, see Markman v. Westview Instruments, Inc., 116 S.Ct.
1384 (1996), and in diversity cases, see Gasperini v. Center for
Humanities, Inc., 116 S.Ct. 2211 (1996).
The Court also continued its line of cases tossing out state restrictions
on arbitration as preempted by the Federal Arbitration Act, see
Doctors' Associates, Inc. v. Casarotto, 116 S.Ct. 1652 (1996), and
held that a state case class action settlement may resolve all claims,
including claims that were subject to exclusive federal jurisdiction,
see Matsushita Elec. Industrial Co. v. Epstein, 116 S.Ct. 873 (1996).
The only bad news for the civil defense bar was Medtronic, Inc.
v. Lohr, 116 S.Ct. 2240 (1996), in which the Court refused to hold
that state-law defective product claims were preempted by FDA approval
for medical devices. This decision also continues a trend: except
in the area of the Federal Arbitration Act, the Court is extremely
reluctant to find that a federal regulatory scheme or a federal
approval system preempts state law personal injury claims.
The third area in which the Court was active last year was the
First Amendment. In a very important commercial speech case, the
Court unanimously struck down Rhode Island's prohibition of price
advertising for alcoholic beverages. 44 Liquormart, Inc. v. Rhode
Island, 116 S.Ct. 1495 (1996). In another First Amendment case,
Colorado Republican Federal Campaign Committee v. FEC, 116 S.Ct.
2309 (1996), the Court held that political parties have broad discretion
to support individual election campaigns, as long as such expenditures
are "independent" of candidate spending. The line-up of
the Justices in this case suggests that the Court's seminal decision
in Buckley v. Valeo, 424 U.S. 1 (1976)--in which the Court upheld
federal election financing laws--may be coming unraveled.
The Court, in two very interesting cases, also extended its "unconstitutional
conditions" doctrine, holding that its previous cases saying
that government employment could not be terminated or withheld because
of an individual's First Amendment activities should be extended
to government contractors. See Umbehr, supra; O'Hare Truck Service
Inc., supra. In a stinging dissent in both cases, Justice Scalia
pointed out that these issues raised all kinds of questions about
political patronage that could be, and were, subject to all manner
of legal regulations and prohibitions, but which were highly unsuitable
for constitutional prohibition.
One final substantive area that deserves mention is the relationship
between citizens and their property and the government's power to
take or damage that property. Two cases stand out in particular.
In Bennis v. Michigan, 116 S.Ct. 994 (1996), the Court upheld by
a 5-4 vote the seizure of a car that had been used by an individual
for an illegal sex act with a prostitute. The innocent wife, who
was half-owner of the car, complained that she had had no knowledge
or complicity in the unlawful act and that her interest in the property
could not be seized. Writing for the Court, Chief Justice Rehnquist
did not really attempt to justify the fairness of the seizure, but
relied instead on a long and relatively unbroken line of authority
upholding government seizure of contraband, the instrumentalities
of unlawful practices, and the proceeds of illegal conduct. Interestingly,
Justice Kennedy joined the dissenters and Justice Ginsburg joined
the majority. This case represents a shift for the Court, which
had begun to impose restrictions and limits on government seizures.
But the vote and the division of the Justices suggests that this
battle may not be over, and the next time the government appears
to overreach the Court may swing back in the other direction.
The other highly significant case in this area was the decision
in United States v. Winstar Corp., 116 S.Ct. 2432 (1996), released
on the last day of the Term. Essentially, the government had encouraged
banks or thrifts to rescue failing savings and loans with promises
of certain regulatory treatment to facilitate the transactions.
Congress then came along and passed sweeping financial institution
reforms, wiping out the promises made by the regulators. Numerous
cases were brought claiming takings and breach of contract. Winstar
upheld the breach of contract claims, exposing the government to
billions of dollars in liability to private investors. The potential
implications of this case remain to be seen, but it has the possibility
of affecting many situations in which private parties make deals
with regulators only to find their reasonable expectations overturned
by subsequent government actions.
In conclusion, the Supreme Court continues to be America's most
fascinating, unique, and unpredictable institution of government.
Its decisions are shaped more than any of our institutions by the
personalities of its members and their impact on one another. Whether
we want a "living" Constitution or not, the structure
and dynamics of the current Supreme Court ensures that that is what
* Theodore Olson is the Chairman of the Federalism and Separation
of Powers Practice Group. He is a partner, Gibson, Dunn & Crutcher,
Washington, D.C. Mr. Olson, who was Assistant Attorney General for
the Office of Legal Counsel under President Reagan, has argued numerous
cases before the Supreme Court. During the 1995 Term, Mr. Olson
argued on behalf of the Commonwealth of Virginia in United States
v. Virginia, on behalf of petitioner Stacey Koon in Koon v. United
States, and on behalf of the respondent in Gasperini v. Center for