"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 (news
- web
sites), 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 court's
march to increase state rights at the expense of federal control in
a case about 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.
Those tough-on-crime rulings were in keeping with the court's
rightward shift under Rehnquist's leadership, a path that has taken
the court far from its progressive stance under the Civil Rights era
stewardship of Chief Justice Earl Warren.
It is a mark of the current court's fundamentally conservative
outlook that all nine justices voted to allow Michigan to cancel
family visits for prisoners caught with drugs, and that a six-member
majority said Congress can require public libraries to block
objectionable material on their Internet terminals or lose federal
money.
Rehnquist and fellow conservative Justices Scalia and Clarence
Thomas (news
- web
sites) still held sway in a large percentage of the 73 cases
decided this term. The three usually vote together and prevail when
they can attract one or both of the court's center-right justices,
Reagan appointees Sandra Day O'Connor (news
- web
sites) and Anthony M. Kennedy.
It was O'Connor who joined more liberal justices to preserve
affirmative action. That vote was 5-4. It was Kennedy who provided
the crucial vote in the sodomy case.
In that case, the court set out a constitutionally protected
right to adults' private sexual conduct. The government has no
business peeping in bedroom windows, the court said in a ruling
written by Kennedy.
O'Connor also voted to strike down a Texas sodomy ban, making the
overall ruling 6-3, but she would not go nearly as far as Kennedy
and her more liberal colleagues.
Religious broadcaster Pat Robertson was among many conservatives
who condemned the decision, which he said would take the nation
"down into a moral sewer."
The nine justices closed their term without any announcement of
an impending retirement.
An opening on the court had been hotly anticipated on Capitol
Hill and elsewhere, since it would give President Bush (news
- web
sites) his first opportunity to name a Supreme Court justice.
The anticipation peaked with release of the court's final
opinions Thursday, the day the court most disappointed political and
social conservatives with its gay rights ruling.
"No justice may have retired physically, but a number managed to
retire intellectually," Kmiec said.
