Supreme Court Roundup: A Review of October Term 1995
  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 lions.

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 together.

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 cases.

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 we have.

* 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 Humanities, Inc.


2001 The Federalist Society