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Posted Nov. 14, 2002
Revived Federalism Doctrine Seen as Legacy of Rehnquist Court

Supreme Court Chief Justice William Rehnquist will likely step down after the current term, ending the second-longest-serving court in the nation's history with a final period distinguished by decisions revising the doctrine of federalism, according to a panel discussion sponsored by the American Constitution Society at the Law School Nov. 12. The panel—University of Southern California law professor Erwin Chemerinsky, U.Va. law professor John Harrison, and Duke law professor Chris Schroeder—discussed the legacy of the Rehnquist court, the Lockyer v. Andrade case challenging the constitutionality of California's three strikes law, and other cases that will be ruled on this term.

In Lockyer, the first Supreme Court challenge to the application of the "three strikes" law, Chermerinsky urged the justices to invalidate Californian Leandro Andrade's life sentence for stealing $153 worth of children's videotapes. The Supreme Court heard arguments on Andrade in November in tandem with another case, Ewing v. California, in which Gary Ewing received 25 years to life for stealing $1,200 worth of golf clubs.

"It is completely irrational to put someone in prison for life for shoplifting," said Chemerinsky. "This is a man who has never committed a violent crime. At worst, he might try to steal Snow White again."

Passed in 1994, California's law requires a prison term of 25 years to life for anyone convicted of a third felony after two previous serious or violent felony convictions. Crimes that normally might be considered misdemeanors, such as petty theft, can be boosted to felonies under California's penal code. Andrade and Ewing, as well as hundreds of others, are nonviolent criminals whose previous sentences were for burglary and petty theft. California is the only state that allows such stiff punishment for a minor, nonviolent "third strike."

Chemerinsky's argument focused on whether a life sentence for petty theft constitutes "cruel and unusual" punishment. A three-part test is used to define "cruel and unusual" punishment, he explained: the gravity of the offense is compared to the harshness of the punishment; the punishment is compared with that meted out for other offenses in the same jurisdiction; and the sentences imposed by other jurisdictions for the same crime are considered.

In November 2001 the Ninth Circuit Court of Appeals overturned Andrade's 50-year sentence, agreeing with his claim that it was cruel and unusual punishment in violation of the Constitution's Eighth Amendment. In its ruling, the majority said Andrade's sentence was "grossly disproportionate to his two misdemeanor offenses, even when we consider his history of nonviolent offenses."

Chemerinsky noted that the case before the Court does not address the three strikes law in general, but only as applied to Andrade's case, where a conviction for petty theft led to a life sentence with a possibility of parole after a minimum of 50 years.

"It's difficult to read [the outcome]," Chemerinsky said. "It will turn on O'Connor and Kennedy."

Reviewing the legacy of the Rehnquist court, Chemerinsky saw five main themes: the use of federalism to limit congressional power and expand state sovereign immunity; the narrowing of the rights of criminal defendants and the availability of habeas corpus; the lessening, even obliteration, of the wall separating church and state; the restriction of remedies for discrimination and the ability of the federal courts to remedy school desegregation; and the refusal to recognize any new rights while narrowing existing rights (with the notable exception of speech, where the conservatives are even more protective than liberal judges).

Harrison agreed that federalism was the distinctive work of the Rehnquist court and that it focused largely on the "anti-commandeering doctrine," the extent to which Congress can use its power to spend money to induce the states to do things Congress couldn't otherwise require them to do. But Harrison said the Rehnquist court's work in federalism is in "inverse proportion" to the effect it had on society at large. It amounts to a "tempest in a teapot" in that most of the decisions involve cases that will have little effect beyond the claims of the individual plaintiff.

Chemerinsky disagreed, seeing a growing body of cases narrowing federal power considerably and protecting the states. He predicted that trend would continue.

Harrison noted that the court has yet to develop many of its federalism principles, and that "we can hope for some elaboration of these doctrines in this term, particularly the strength of the nexus required between the federal funding program and the actual funding restriction at issue."

In his review, Schroeder said that "whenever the Rehnquist court ends, we will soon look back on it as one of the most influential chief justiceships in the history of the court, along with Warren and Marshall." He said one case this term, Hibbs, will continue the series of decisions mapping out the federal government's authority under Section 5 of the 14th Amendment. That case will require the court to interpret earlier language that it hasn't developed so far. For example, what information indicating the existence of constitutional violations must Congress have before it seeks to remedy them with a broad-brush measure that sweeps in both constitutionally problematic and innocent state conduct?

Schroeder said an underlying concern of the court is to help a state government avoid being "embarrassed." According to Schroeder, "The Supreme Court keeps talking about the 'dignity of the state,' and that it is okay for the federal government to enforce these laws, but not for individual citizens because it embarrasses the state."

Asked about the implications of Rehnquist stepping down, Schroeder saw a "holy war in the United States Senate." He believes that Bush could well nominate the current White House General Counsel Alberto Gonzalez but may have to yield to demands of the right who want someone in the current Scalia-Thomas mold.

Cherminsky said that replacing Rehnquist with a likely Bush pick means only that that seat will stay conservative for the foreseeable future. If O'Connor stepped down instead, it would have more import. If Bush picks relative moderates, Schroeder doesn't foresee any real fights, but if he decides to pick someone very conservative, like Kenneth Starr, then there would be a serious battle.

Harrison considers it likely that Bush will nominate O'Connor to replace Rehnquist, and Gonzalez to take her place. That would create the first female chief justice and the first Hispanic justice.
• Reported by M. Wood

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