Roberts Court Makes Incremental Moves Toward More Conservative Legacy, Professors Say

September 11, 2009

The U.S. Supreme Court may be growing more conservative under the leadership of Chief Justice John Roberts, but the movement to the right is incremental, a panel of law professors said Wednesday at the annual Supreme Court Roundup sponsored by the Student Legal Forum.

Justice Anthony Kennedy, who weighed in as the most powerful voice on the court this year with 92 percent of his votes cast in the majority, may be one reason for the more seasoned pace.

Howard also pointed to other possible reasons for the court's incremental move away from the liberal Warren Court. Roberts may want to avoid the judicial activist label and be an incrementalist by philosophy, or the conservative justices may want to avoid backlash from Democrats. However, Howard suggested that another option may be the most likely — that the incrementalism is tactical.The conservative justices "have not been able to count on that fifth vote and they have to be more cautious," said Professor A. E. Dick Howard, who moderated the panel. But compared to last year, Kennedy "seems to have settled in more comfortably with the conservative block."

"It may well be that if that's the agenda, the conservatives on the court know they've got plenty of time, " as only liberal justices are likely to leave the court during Obama's first term, Howard said. "From actuarial or statistical prospects, it's likely to be the end of that second term before anything really substantial could happen, when maybe Scalia or maybe somebody on that side of the court would retire, and it's at that point that change could come about."

Howard outlined other trends during the 2008-09 term. The court decided many cases on narrow grounds and as a result they won't be widely applicable. The court took more cases from the 9th Circuit than any other, and "tended to reverse those decisions, " he said. But surprisingly, every one of the cases taken from the more conservative 4th Circuit was also reversed.

One of the most infamous cases the court tackled this term involved school officials' strip search of a female student for prescription-strength medicine.

Barbara Armacost
Barbara Armacost

The 8-1 decision for the student in Safford Unified School District #1 v. Redding could be symbolic of the court's continued movement toward a less monolithic understanding of the Fourth Amendment, Professor Barbara Armacost said.

Prior to Safford, lower courts mostly ignored language in a related 1985 case, New Jersey v. T.L.O., that held a school administrator's search was permissible if not "excessively intrusive in light of the age and the sex of the student and the nature of the infraction."

"In Safford, however, in analyzing the strip search, the Supreme Court noted that the search was for ibuprofen, an over-the-counter pain pill," Armacost said. "The court faulted the school officials for not considering whether the drugs were really dangerous or likely to be abused by students."

In a more broadly applicable case, Arizona v. Gant, the justices ruled that police may not search an automobile once an arrestee has been secured, unless the police have "reason to believe" that such a search would yield evidence related to the crime of arrest, she said.

On its face, the ruling appears to limit police officers' ability to search vehicles when drivers are stopped for minor traffic offenses, Armacost suggested, but "police officers have all kinds of ways to get vehicle searches."

More critically, Gantpermits police to do a full vehicle search if they have reason to believe there is evidence of the crime of arrest in the vehicle.

"This would be the first time that the Supreme Court has permitted a full search based on a quantum of evidence more like reasonable suspicion — in other words, less than probable cause, " Armacost said.

"By drawing vehicle searches into its reasonable suspicion jurisprudence, the court's invoking a warrantless world in which the question to be asked is something like whether the search was reasonable under all the circumstances," she said. "Like the test in Safford, this balancing test invites questions such as whether the seriousness of a crime justified the scope of a particular search."

In Herring v. United States, justices ruled that police error would not result in exclusion of evidence obtained through what turned out to be an illegal search.

In the case, police arrested Bennie Dean Herring because they believed there was a warrant for his arrest. After Herring was arrested, police found firearms and methamphetamines in Herring's car. The police later found out the warrant had been recalled, so Herring's attorneys tried to get the evidence from the searches excluded.

The Supreme Court ruled that even if the search was a Fourth Amendment violation, it didn't matter because it resulted from a negligent mistake, not malicious intent on the part of the police.

Prior Supreme Court rulings have held that evidence seized as a result of administrative errors need not be excluded, Armacost said, with one key difference: They involved mistakes by people other than police officers, such as magistrates or court clerks.

"In these contexts the court said the exclusionary rule would have no deterrent effect because the officers were not the ones who made the mistake, " she said.

Herring is the first case that applies to mistakes made by police officers. The court ruled that to trigger the exclusionary rule, "the police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system."

If the court means what it said, Armacost suggested, "there will be a lot less exclusion in future cases."

Additionally, "If Herring narrows the kinds of cases in which exclusion applies, the effective reach of the Fourth Amendment will shrink."

Five of the 75 cases the Supreme Court reviewed this term involved environmental law.

In Winter v. National Resources Defence Council, the court ruled that national security interests far outweighed the rights of whales affected by Navy sonar tests. "That's probably a predictable outcome, particularly in the post-9/11 atmosphere, " Cannon said. "Finally, environmental cases are getting the recognition or the attention that they deserve — at least, if you are an environmentalist. The bad news is, that attention is almost all negative," said Professor Jonathan Z. Cannon, who formerly served as general counsel for the Environmental Protection Agency.

But Cannon said he was more concerned by the decisions in which the Supreme Court reviewed statutory interpretation by lower courts or federal agencies. "These tend to be the less glamorous decisions," Cannon said, but this year they revealed a trend.

In Entergy Corp. v. Riverkeeper, the court examined the reasoning behind an EPA regulation that failed to mandate a particular cooling water intake structure in certain power plants.

Environmental groups and several states challenged the EPA regulation for relying on cost-benefit analysis, which they argued was illegal under the Clean Water Act. The act mandates that the agency set standards reflecting "the best technology available for minimizing adverse environmental impact."

"In using cost-benefit analysis, the agency selected standards that were less demanding on the electric utilities than would otherwise have been the case," Cannon explained. The looser standards adopted by the EPA could negatively impact fish and shellfish populations.

The Supreme Court sided with the EPA and ruled that cost-benefit analysis was permitted.

"The downside is — and this is what environmentalists stress — is that cost-benefit analysis tends to privilege those values that can be easily quantified and to disadvantage those values that cannot. So economic costs to the industry are going to be fully taken into account. Impact on non-marketable fish and shellfish — probably not. It's hard to put a dollar value on them," Cannon said. Cost-benefit analysis "creates room for agencies to strike their own policy balance."

In Burlington Northern & Santa Fe Railway et al v. United States, the court ruled that a railway company leasing land to another company that contaminated the land was liable for only a small portion of the cost of cleaning the site. Lower courts traditionally rejected such "apportionment" arguments, where a party is only liable for a small portion of the total amount of contamination.

"The lower courts have been complicit with the government in routinely rejecting requests by these private parties to apportion damages," Cannon said. The Supreme Court disagreed in this case. "That nudges the lower federal courts into being much more receptive on apportionment than they have been in the past."

Overall the court is moderating environmental requirements and emphasizing the importance of considering the economic burdens of environmental regulation. If the trend continues, "it's going to change in the aggregate the face of environmental law, " Cannon said.

The city of New Haven discarded the results of a test used to promote firefighters when no African-Americans passed the test. Although city officials were trying to avoid a lawsuit based on the Civil Rights Act of 1964's doctrine of discriminatory effects, white firefighters and a Hispanic man who passed the test sued for discrimination.Perhaps the most prominent case of the past term, Ricci v. DeStefano, the so-called New Haven firefighter case, was a narrow decision that received media attention because it appealed a ruling from the docket of Supreme Court nominee Sonia Sotomayor, said Professor George Rutherglen.

"The city found itself in a very bad position very early on in this case," Rutherglen said. "If they kept the test results, they were liable under the Civil Rights Act, and if they discarded the results, they were liable under the Civil Rights Act. The Supreme Court eventually held that they were liable under the Civil Rights Act."

Although the ruling applies to only those few employers who might administer such tests, the message was clear: "Be very careful about affirmative action. Be very careful about justifying your practices because you're worried about lawsuits based on discriminatory effects."

In Northwest Austin Municipal Utility District Number One v. Holder, Attorney General, et al, the court re-examined the Voting Rights Act of 1965, which established protections for voting rights across the country, but placed particularly stringent rules in the South where strict segregation had blocked African-Americans from voting in the past.

The Northwest Austin Municipal Utility District, established in 1987 — well after Jim Crow segregation — sought relief from rules requiring it receive federal approval for changes to its election of board members.

"The disproportion between the grand issues of voting rights and racial equality and this recently established municipal district already give a clue that perhaps the law should not be brought down very hard on a governmental unit that did not exist until the 1980s, " Rutherglen said.

While the Supreme Court ultimately upheld the constitutionality of the Voting Rights Act, the 8-1 decision also allows the utility district to apply for an exemption. The majority opinion outlined how the Voting Rights Act needs to change in today's environment in order to avoid constitutional challenges.

"The Roberts Court I think is trying to send a signal," Rutherglen said. "It's a warning that [Roberts] gives to Congress that 'you know, you really should have thought a little harder before you extended the Voting Rights Act in 2006 for another 25 years."

"To the extent that they want to establish a dialogue with Congress, to send warnings to Congress to repair legislation rather than to declare it unconstitutional, I think that's a step forward in our constitutional system."

Rutherglen said that although the Roberts Court tends to restrict civil rights legislation, the trend is not uniform.

"In both cases the court lets major civil rights legislation stand. This is a very incrementalist decision."

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