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Document Outline
Conservative Choices, Liberal Results
Disability, Death, and Discrimination
Campaign for Change
Separation of Powers
Defeats for the States and for Gay Rights
A Conservative Majority
Divisions on Abortion and School Prayer
A Second Wind for Conservatives: States' Rights
Defeat for Term Limits and a Win for Gay Rights
Setbacks for Clinton
Bush v. Gore
The War on Terror, Guantanamo Bay, and a Clash with the President
Divided Court on Gun Rights and Habeas Corpus

Richard Nixon campaigned against the Warren Court in 1968, calling it soft on crime. Soon after taking the reins as president, he chose as Warren's successor a veteran Republican judge who had also spoken out against the liberal Court for its leniency toward criminal defendants. Warren Earl Burger of Minnesota, the nation's fifteenth chief justice, was sworn in on June 23, 1969. President Nixon said he had chosen Burger to reverse the “liberal activism” of the Warren era. As an appeals judge, Burger had earned a reputation as a strict constructionist of the Constitution and federal laws. He usually sided with the state in criminal law cases. Burger was, however, more moderate on civil rights issues. He was easily confirmed by the Senate.

Justice Fortas's seat remained vacant for a full year, as Nixon's effort to appoint a successor ran into unexpected difficulties. Three months after Fortas resigned, Nixon nominated Clement F. Haynsworth Jr., a conservative appeals court judge from South Carolina. In November a liberal backlash to the Fortas affair generated charges of conflict of interest against Haynsworth and denied him confirmation, 55–45. It was the first time since 1930 that a presidential nominee to the Court had been rejected. Early in 1970 Nixon named G. Harrold Carswell of Florida, another appeals court judge, to the empty seat. Carswell, whose qualifications were mediocre at best, was rejected, 51–45, in April 1970. His nomination had drawn opposition from a wide variety of groups because of his views on racial issues and his undistinguished career. Soon after the Carswell defeat, Nixon selected Harry A. Blackmun, an appeals court judge from Minnesota and a longtime friend of Chief Justice Burger, as his third choice for the seat. Blackmun was confirmed unanimously, and he joined the Court in June 1970.

Conservative Choices, Liberal Results

Although several Court rulings in the 1970s did lessen the impact of some landmark decisions of the Warren era, none of them was overturned. In addition, the Burger Court handed down a few major liberal rulings of its own. The October 1970 term was an eventful one. In Swann v. Charlotte-Mecklenburg County Board of Education (1971) the Court made clear that it had no intention of retreating from Brown. [99] Racial segregation of public schools was and would remain unconstitutional. With Burger writing the opinion, it unanimously upheld the use of cross-town busing and racial balance ratios to remedy school segregation.

Women's rights also arrived at the Court that year. For the first time, the justices held invalid a state law discriminating against women and ushered in a line of decisions that would bring increasing pressure on laws that treated the sexes differently. [100] The Court also declared alienage, like race, to be a suspect classification or category when used by lawmakers and therefore subject to legal challenge under the Equal Protection Clause of the Fourteenth Amendment. It said statutes relating to alienage deserve the highest judicial scrutiny. [101] In Harris v. New York (1971) the justices allowed limited in-court use of statements obtained from suspects who were not read their Miranda rights. [102] In a set of cases known as Younger v. Harris (1971) the Court curtailed the power of federal judges to halt enforcement of state laws challenged as infringing the First Amendment. But the most dramatic ruling of the term came in another First Amendment case: on June 30, 1971, the Court resoundingly rejected the Nixon administration's effort to halt publication of newspaper articles based upon the classified Pentagon Papers. [103]

Just two weeks before the opening of the October 1971 term, Justices Black and Harlan, in failing health, resigned. Black, at eighty-five, had served thirty-four years; Harlan, at seventy-two, had served almost seventeen years. Nixon chose Lewis F. Powell Jr., a former president of the American Bar Association and a successful Virginia attorney, to fill Black's seat, and selected William H. Rehnquist of Arizona, an assistant attorney general, to fill Harlan's position. Powell and Rehnquist were confirmed in December 1971. Not since Warren Harding in the early 1920s had a president in his first term placed four men on the Court. Although Nixon purposely selected justices with documented conservative views, the Court's decisions continued to move in the liberal direction set by the Warren Court. In 1972—the first term in which all four Nixon nominees participated—the Court struck down all existing death penalty laws, expanded the right to counsel, and refused to allow the administration to use electronic surveillance without a warrant, even in cases involving the nation's security. [104]

The most controversial decision of the decade came early in the following year. In January 1973, during the same week as Nixon's second inaugural, the Court, 7–2, legalized abortion, which Nixon opposed. It was the first ruling on the constitutionality of the century-old laws against abortion; in a single opinion, the Court struck down the laws in forty-six states and said the abortion decision should be left to a woman and her doctor. Justice Blackmun wrote the Court's opinion. Only Justices Rehnquist and White dissented from the Court's ruling in the landmark case of Roe v. Wade (1973). [105] While moving boldly on the death penalty and abortion, the Court stepped away from requiring equal funding in the public schools. In a Texas case, the justices rejected a constitutional challenge to the property tax system for financing public schools, saying that school funding was a matter for states and localities, not the federal courts. Desegregation, however, remained the task of the federal judiciary, and that year schools outside the South were told they too had a duty to desegregate. [106] In a final effort to clarify the obscenity issue, the Court formulated a new three-part definition of obscenity that would stand for decades. [107] And in Mahan v. Howell (1973), the justices held that state legislative districts need not always meet the standard of strict equality applied to congressional districts. [108]

The last and most stunning decision of the Court during the Nixon administration was a personal blow for the president. The Watergate scandal had set off full-scale investigations on Capitol Hill, as well as one by a special prosecutor. In the course of this investigation, the special prosecutor subpoenaed the president for certain taped recordings of White House conversations that could be used as evidence in the trial of former White House aides charged with obstruction of justice. Nixon refused to comply, asserting executive privilege—the president's right to refuse with impunity to obey such an order when that refusal was necessary to protect the confidentiality of conversations with his aides. In June 1974 the case came before the Supreme Court. United States v. Nixon (1974) was argued in a special late-term session in July. On July 24 the Court unanimously ruled that Nixon must comply with the subpoena and turn over the tapes. Rehnquist, who had served as a Nixon adviser and as a lawyer in the Nixon Justice Department, did not participate. The opinion was delivered by Chief Justice Burger. [109]

With this ruling the Court reasserted the power first claimed for it by Chief Justice John Marshall—to say what the law is. In doing so, the Court flatly denied the president of the United States the right to operate outside the law. Nixon said he would comply with the subpoena. Because the tapes confirmed that Nixon had arranged to cover up the White House role in the Watergate crimes, he resigned the presidency two weeks later, after the House Judiciary Committee had approved articles of impeachment against him.

Disability, Death, and Discrimination

In 1973 Justice Douglas surpassed Justice Stephen Field's record to become the country's longest-serving justice. On the last day of 1974, he suffered a debilitating stroke, but did not retire until November 1975. Douglas had served on the Court thirty-six and one-half years since his appointment by President Roosevelt in 1939. He was seventy-seven years old. To succeed him, President Gerald R. Ford—who as House minority leader had once led an effort to impeach Douglas—selected John Paul Stevens, a federal appeals court judge from Chicago, who was seen as moderate and nonpartisan. Stevens was confirmed unanimously by the Senate and was sworn in December 19, 1975. There would not be another change on the Court until June 1981. President Jimmy Carter, Ford's successor, had the dubious distinction of being the only full-term president to enter and leave the White House without having the chance to name someone to the Supreme Court.

Stevens's first term as an associate justice was a busy one. In January 1976 the Court invalidated several major portions of the 1974 Federal Election Campaign Act Amendments intended to regulate campaign spending. In Buckley v. Valeo (1976) the Court overturned candidate spending limits, ruling that limits diminished political expression in violation of the First Amendment. [110] Also in 1976 the Court appeared ready to roll back the clock on the division of authority between the federal government and the states. For the first time in almost forty years, it used the Tenth Amendment to limit the power of Congress over interstate commerce. In National League of Cities v. Usery the Court, 5–4, nullified the 1974 act of Congress that required states and cities to pay their employees in line with federal minimum wage and overtime laws. [111] Such matters, wrote Justice Rehnquist, are for state, not federal authorities, to resolve. Ten days later the Court cleared the way for executions of convicted murderers to resume in the United States after a four-year hiatus, as it upheld certain carefully drafted death penalty laws enacted by states in the wake of its ruling striking down all capital punishment statutes. In 1972 the Court had deemed the capital punishment system arbitrary and capricious because prosecutors and juries were free to decide who among the tens of thousands of murderers and rapists would receive a death sentence. The revised laws reserved the ultimate punishment for aggravated murders. The Court declared, however, that states could not make death the mandatory penalty for first-degree murder. On this point the Court again divided 5–4. [112]

The Court in 1979. Seated from left: Justices Byron R. White, William J. Brennan Jr., Chief Justice Warren E. Burger, Justices Potter Stewart, Thurgood Marshall. Standing from left: Justices William H. Rehnquist, Harry A. Blackmun, Lewis F. Powell Jr., John Paul Stevens. (Source: Collection of the Supreme Court of the United States.)

The justices also made it more difficult for prisoners to challenge their state court convictions in federal court. The justices ruled that if a challenge was based on the argument that illegally obtained evidence was used to convict, it could succeed only if the state had failed to give a petitioner an opportunity to make that claim earlier. [113]

The most publicized decisions of the late 1970s involved “reverse discrimination”—claims by white men that they were denied fair treatment as a result of the efforts of schools and employers to implement affirmative action programs to remedy past discrimination against women, African Americans, and other minority group members. The Court was as divided as the rest of the country on the issue. In a 5–4 vote, the Court, on the one hand, held in Regents of the University of California v. Bakke (1978) that racial “quotas” were invalid; on the other hand, in another 5–4 vote, it ruled that moderate affirmative action policies were permissible. [114] In short, a majority refused to hold all consideration of race unconstitutional in school admissions decisions. Justice Powell—who was often the pivotal vote in close cases—was the swing vote on this issue. The following year the Court in United Steelworkers v. Weber (1979) held, 5–2—Powell and Stevens did not participate—that private corporations were free to adopt voluntary affirmative action programs to eliminate clear racial imbalances in certain job areas. [115] Later, in Fullilove v. Klutznick (1980) the Court upheld, 6–3, congressional power to set aside a certain percentage of federal funds for contracts with minority-owned businesses under the 1977 Public Works Employment Act. [116] Although the justices were wary of the overt use of race, they left schools, colleges, and employers free to consider race as one factor in making admission and hiring decisions.

Campaign for Change

In 1981 Ronald Reagan became president and brought with him the conviction that he had a mandate from the American people to change the way government related to the governed. The Supreme Court was a major focus of his campaign for change throughout his eight years in the White House. Reagan disagreed with the substance of many of the modern Court's liberal decisions and with the judicial activism that informed them. He believed that federal judges were intruding into controversial matters that, in a democracy, should be left to elected officials. The phrase judicial restraint was his administration's shorthand for the belief that courts should leave most major controversies to legislatures and elected officials to resolve. Reagan used his appointments and his administration's power of argument to move the Court in that direction.

The Reagan Justices

Five months into the Reagan presidency, Justice Stewart announced that he was retiring, after twenty-three years on the Court. Three weeks later, President Reagan made history by announcing that he would send to the Senate the name of a woman—Sandra Day O'Connor, a state appeals court judge from Arizona—as Stewart's successor. O'Connor, who had served in all three branches of Arizona government before her nomination, was easily confirmed, 99–0, in September. She was sworn in September 25, 1981, as the 102nd justice and the first woman member of the nation's highest court. Initially, she provided a reliable conservative vote and articulated conservative views on many issues before the Court. Several years passed before another vacancy occurred. By 1984 the Court was one of the oldest in history, with the average age of the justices at seventy. O'Connor was the only justice under sixty. In March 1986 Justice Brennan turned eighty and at the time had served on the Court for thirty years. As the liberal spokesman in a time of conservative resurgence, his continued presence on the Court was a focus of considerable speculation. A happy second marriage after the death of his first wife and his continuing energy and enthusiasm for his job, however, made his departure from the Court an unlikely prospect, which was heartening to liberals and discouraging to conservatives.

Chief Justice Warren Burger swears in Sandra Day O'Connor to the Supreme Court, September 25, 1981. Her husband, John J. O'Connor, stands in the center holding two family bibles. (Source: AP Photo/Michael Evans.)

In June 1986 Chief Justice Burger, about to celebrate his seventy-ninth birthday, announced that he would retire. On the same day of Burger's announcement, President Reagan named Justice Rehnquist, then sixty-one, as Burger's successor. He selected Antonin Scalia, fifty, a member of the U.S. Court of Appeals for the District of Columbia Circuit, to take Rehnquist's seat. Rehnquist's confirmation was more difficult than the White House had anticipated, with liberal criticism focusing less on Rehnquist's opinions as a justice and more on allegations of discriminatory conduct years before he joined the Court. Civil rights groups mounted an all-out fight to deny him confirmation, but he was confirmed on September 17, by a 65–33 vote. Scalia was confirmed the same day, 98–0.

The nine justices of the October 1986 term sat together for only nine months. As the term ended in July 1987, Justice Powell, seventy-nine, announced that he was retiring after sixteen years of service. Public attention focused on the selection of Powell's successor with an intensity unlike that accorded the earlier three Reagan appointments, primarily because of Powell's pivotal position on several important, actively legislated and litigated issues. A reserved, courtly, and inherently conservative man, Powell had nevertheless cast several critical votes against public school prayer, for freedom of choice in abortion, and for permitting the continued use of affirmative action. With the ideological control of the Court hanging in the balance, Reagan announced he was nominating Judge Robert H. Bork, a former Yale law professor and perhaps the nation's most prominent conservative critic of the Warren Court and its liberal record. Bork had been a colleague of Scalia's on the appeals court, but he was better known for his conservative writings before he became a judge. He was also known for a small, but infamous role during the Watergate affair. In 1974 he was U.S. solicitor general, the number three job in the Justice Department, when President Nixon ordered the attorney general to fire Special Prosecutor Archibald Cox for demanding the Watergate tapes. The attorney general and his deputy quit in protest, but Bork carried out Nixon's order. After a summer-long battle that resembled a political campaign and a week of contentious hearings in the Senate Judiciary Committee, Bork's nomination was rejected 58–42 by the Senate in October.

Reagan moved quickly, announcing that he would name another member of that same appeals bench, Douglas H. Ginsburg, to the empty seat. His proposed nomination was short-lived. Within two weeks, before the nomination was officially sent to Capitol Hill, it was withdrawn in the wake of Ginsburg's admission that he had smoked marijuana during his years as a student and professor at Harvard Law School. Four days later, on November 11, Reagan named Anthony M. Kennedy, a member of the U.S. Court of Appeals for the Ninth Circuit, as his nominee to fill Powell's seat. Kennedy had a reputation as a moderate conservative and not an ideologue, and he was easily confirmed by the Senate in February 1988 by a 97–0 vote.

Reagan's Conservative Agenda

Through the solicitors general, President Reagan for eight years consistently pressed conservative positions before the Court. He was not successful, however, in convincing the Court to change its mind on abortion, civil rights, or accommodation between church and state during his time in the White House. Twice the administration suggested to the justices that it was time to overturn Roe v. Wade, the landmark ruling legalizing abortion, and leave that decision to the states instead. Twice, in 1983 and in 1986, the Court rejected that argument, reaffirming Roe v. Wade. The margin, however, was narrowing. In 1973, seven justices had formed the majority in Roe v. Wade, with White and Rehnquist dissenting. Ten years later, the Court's 1983 ruling in a case from Akron, Ohio, came by a 6–3 vote, as Justice O'Connor joined the dissenters with an opinion strongly critical of the logic of the Roe ruling. [117] When the Court revisited the issue in 1986, the margin had shrunk to one vote—that of Justice Powell. The reaffirmation of Roe was 5–4. Powell then retired. [118]

William H. Rehnquist (Source: Collection of the Supreme Court of the United States.)

The administration met with some limited success in its battle against affirmative action. In Reagan's first term, the Court held that affirmative action should not apply to override the traditional rule for layoffs—last hired, first fired. [119] The administration's effort to stretch that ruling into a broad ban on affirmative action crumbled in 1986 and 1987, when the Court ruled decisively in four separate cases that, carefully applied, affirmative action was an appropriate and constitutional remedy for documented discrimination. [120]

The Court initially seemed receptive to Reagan's arguments urging it to relax its view that the First Amendment required strict separation of church and state. In 1984 the Court, 5–4, upheld a city's decision to include a nativity scene in its holiday display. The majority, in the words of Chief Justice Burger, declared that the Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” [121] Encouraged, the administration backed Alabama's bid in the next term for approval of its “moment of silence” law, permitting teachers to set aside a period in each public school classroom each day for quiet meditative activity. The theory of accommodation did not, however, stretch that far. The Court, 6–3, held Alabama's law unconstitutional. [122] A few weeks later, the Court told Grand Rapids, Michigan, and New York City that they too were in violation of the First Amendment for supplying remedial and enrichment services to disadvantaged children who attended parochial schools. [123]

Separation of Powers

The doctrine of separated powers is implicit in the design of the federal government set out in the Constitution. It allocates powers among the judicial, legislative, and executive branches so that they act as a check upon each other. As the federal government adapted to the increasingly complex demands of modern life, it experimented with new devices for governing, including the legislative veto, a new mechanism to reduce budget deficits, and independent prosecutors. In the 1980s each was challenged before the Supreme Court as violating the separation of powers. Two fell to that challenge; one survived.

For half a century, Congress had found it useful to include in various laws—more than two hundred by 1983—a legislative veto provision requiring or permitting certain administrative actions implementing the law to return to Congress for approval before taking effect. The executive branch had long criticized this device as encroaching on its functions, and in 1983 the Court agreed. Not since the New Deal collisions had Congress felt so keenly the power of the Court to curtail its actions. The Court's ruling in Immigration and Naturalization Service v. Chadha (1983) invalidated parts of more federal laws than the Court had struck down up to that time in its entire history. [124] Three years later, the executive branch won another separation of powers victory, when the Court held unconstitutional a new mechanism that Congress had devised for forcing the president to reduce the ever-expanding budget deficit. In Bowsher v. Synar (1986) the Court held that the comptroller general, head of the General Accounting Office, an arm of Congress, could not be given authority to dictate budget cuts to the president. [125]

Congress won the last big separation of powers argument with the Reagan administration when the Court upheld the use of independent counsels to investigate the president's appointees. Under the Ethics in Government Act, a special three-judge court was given the authority to appoint an independent counsel—a special prosecutor outside the Justice Department—to investigate alleged wrongdoing by high government officials. To the surprise and dismay of conservatives, Chief Justice Rehnquist spoke for the Court's 7–1 majority in Morrison v. Olson (1988) in upholding the power of Congress to grant this authority to the special court. [126] The ruling had particular sting for President Reagan, for it left standing the convictions of two of his close former White House aides, both obtained by independent counsel. Theodore B. Olson, the former Reagan aide who unsuccessfully challenged the law, was cleared of any criminal wrongdoing. He later argued for George W. Bush in the case that decided the presidency in 2000. [127] Olson served as U.S. solicitor general in Bush's first term.

Defeats for the States and for Gay Rights

The revival of states' rights and federalism launched in 1976 by Justice Rehnquist suffered a setback in 1985 when the Court reversed itself. The decision in National League of Cities v. Usery (1976) had relied on the Tenth Amendment as a means for keeping certain state prerogatives from the reach of federal power. States, delighted with its promise, had tried repeatedly to persuade the Court to extend this principle in other areas. The Court, however, was pressed to protect workers, including state employees, from unfair treatment on the job, which called for enforcing the federal workplace laws. Justice Blackmun, who had voted with the five-man majority in Usery, changed his mind to cast the critical fifth vote to reverse it nine years later. The Tenth Amendment sank back into constitutional oblivion. [128] Three years later, the states suffered another blow, in South Carolina v. Baker (1988) when the Court abandoned a position taken almost a century earlier in the Pollock ruling of 1895 and declared that nothing in the Constitution forbade Congress from taxing the interest earned on municipal bonds. [129]

For the first time, the Court in 1984 approved a clear exception to the exclusionary rule forbidding the use of illegally obtained evidence in court and a narrow but definite exception to the Miranda ruling that suspects must first be warned of their rights before being questioned by police. [130] In Davis v. Bandemer (1986), a decision akin to Baker v. Carr, decided twenty-four years earlier, the Court opened the doors of federal courthouses to constitutional challenges to gerrymandering. [131] This decision spawned much litigation, but it failed to halt partisan gerrymandering. Also in 1986 the Court ruled 7–2 that prosecutors may not use peremptory challenges to exclude African Americans from serving on juries. The justices said in Batson v. Kentucky (1986) that rejecting someone on the basis of race violated the guarantee of equal protection of the laws. [132] Finally, in one of the most controversial decisions of the term, the Court, 5–4, said that the Constitution's guarantees of personal liberty and privacy do not protect private consensual homosexual conduct between adults. In a harsh defeat for gay rights, Justice White wrote the opinion in Bowers v. Hardwick (1986) upholding Georgia's law against sodomy. Justice Powell, who was in the majority, later stated publicly that he regretted his vote, but it took a decade for the Court to decide another case involving gay rights. [133]

A Conservative Majority

For eight years President Reagan worked to bring about a change of direction in the Supreme Court. Despite four appointments and innumerable arguments, that change did not take place until he left the White House. For the October 1987 term, the last full term of the Court during Reagan's presidency, the Court was in a holding pattern. For more than half of it, the Court operated with only eight members, because Justice Kennedy, Reagan's last nominee, did not join the Court until February 1988, after the failure of the Bork and Ginsburg nominations. The October 1988 term, however, brought Reagan's campaign for change closer to fruition, as Kennedy proved a powerful conservative force, allied with Justices O'Connor, Scalia, White, and Rehnquist, who showed an increasing mastery of the power of the chief justice. By the end of the term, even the most cautious observers were calling it a watershed in the Court's history. “Rarely has a single Supreme Court term had such an unsettling effect on the political landscape,” writes Linda Greenhouse in the New York Times. [134]

The Court in 1989. Seated from left: Justices Thurgood Marshall, William J. Brennan Jr., Chief Justice William H. Rehnquist, Justices Byron R. White, Harry A. Blackmun. Standing from left: Justices Antonin Scalia, John Paul Stevens, Sandra Day O'Connor, Anthony Kennedy. (Source: Collection of the Supreme Court of the United States.)

The first signal of the Court's conservative shift came in January 1989, when the justices struck down a Richmond, Virginia, minority contractor set-aside program. The city's plan required that 30 percent of city funds granted for construction projects go to firms with minority owners. The Court, 6–3, said that the set-aside, challenged by a white contractor, was too rigid and that the city had not sufficiently justified it with specific findings of past discrimination. For the first time, a majority of the Court ruled that government programs that discriminate against whites are to be viewed with the same “strict scrutiny” as programs that discriminate against blacks. This conclusion cast doubt on most “affirmative action” approaches by state and local agencies. [135] On questions of criminal law, the Court took a tough stand, refusing to find it unconstitutional for a state to execute criminals who were juveniles at the time of their crime or to execute a mentally retarded defendant. [136] In addition, two federal drug testing programs won approval from the Court, which held that mandatory urine tests for drug use do not violate the Constitution's ban on unreasonable searches by the government. In these cases—the testing of railroad workers after accidents and the mandatory testing of customs officials involved in drug interdiction—the public interest outweighed the private right, the Court held. Justice Kennedy wrote both opinions. [137]

The single notable liberal ruling of the October 1988 term was highly controversial. In line with its precedents from the Vietnam era, the Court held in Texas v. Johnson (1989) that the state could not punish an individual who burned an American flag in protest. The Court said the law violated the First Amendment's protection for freedom of expression. Not only did this ruling align the Court in unusual ways—Justices Scalia and Kennedy joined the Court's liberal members in the majority, and Stevens found himself in dissent with O'Connor, Rehnquist, and White—but also it set off calls for a constitutional amendment to reverse the ruling. [138]

In the most closely watched case of the term, the Court gave states power to regulate abortions more thoroughly than the states had exercised for sixteen years. Although it did not reverse Roe v. Wade outright, the Court's willingness to uphold tests for fetal viability and a ban on abortions in publicly funded hospitals was widely viewed at the time as a step toward the eventual repudiation of Roe. The vote in Webster v. Reproductive Health Services (1989) was 5–4. [139] Chief Justice Rehnquist wrote the opinion without mentioning the right of privacy, the basis of Roe and a right he had stated previously he had never located in the Constitution. Joining him in the majority were Justices Kennedy, O'Connor, Scalia, and White, his fellow dissenter from Roe. In bitter dissent were Justice Blackmun, the author of the majority opinion in Roe, along with Justices Brennan, Marshall, and Stevens. As the Court's second century came to an end, the rulings upholding greater state regulation of abortions, narrowing the reach of federal antidiscrimination laws, and strengthening prosecutors' hands in criminal cases all indicated the Court's new conservative bent.

Divisions on Abortion and School Prayer

In 1990 the Court began its third century speaking in a decidedly conservative voice. Presidents Nixon and Reagan's appointments had created a core of justices with a conservative vision for the Court. And its last Warren-era liberals were headed for retirement. In July Justice Brennan suffered a minor stroke while on a cruise and, after returning to Washington, announced that he was stepping down after nearly thirty-four years on the bench. Brennan had played a pivotal role on the bench since the early years of the Warren Court and was the architect of many of its liberal rulings. The month before his retirement he issued one last surprise, speaking for a 5–4 majority that upheld “benign race-conscious measures” by the federal government, breaking with recent rulings that restricted affirmative action. [140] In 1991 Brennan's friend and ally, Justice Marshall, retired a week before his eighty-third birthday, telling reporters on his last day on the bench, “I'm old and I'm coming apart.” President George H. W. Bush selected as their replacements two judges with conservative reputations: David H. Souter of New Hampshire to fill Brennan's seat, and Clarence Thomas of Georgia to fill Marshall's seat.

Souter was dubbed the “stealth nominee” because he was little known in legal circles, and his views on controversial matters were a mystery. He won easy confirmation in the Senate and took his seat in October 1990 as a cautious, silent newcomer. He spoke little during the Court's arguments and joined Chief Justice Rehnquist in the term's major cases. He cast the decisive fifth vote to uphold the Bush administration's ban on abortion counseling in publicly funded family planning clinics. [141] Thomas had served only one year on the U.S. Court of Appeals in Washington, but had gained a name in conservative circles through a series of provocative speeches and writings that challenged liberal dogmas. During his Senate hearings, he distanced himself from his previous statements and promised that he had “no ideology” to bring to the bench. Liberal interest groups led a full-scale campaign to defeat his confirmation, asserting that Thomas was a hard-core conservative who would seek to reverse the liberal legacy of Thurgood Marshall. The Senate Judiciary Committee split, 7–7, on his nomination.

Just days before the full Senate was set to vote on Thomas, National Public Radio and Newsday reported that the FBI was investigating an allegation of sexual harassment lodged by a former Thomas aide. Once the story of Oklahoma law professor Anita Hill became known, the Senate committee reopened its hearings, which were nationally broadcast. Hill had worked for Thomas at the Education Department and the U.S. Equal Employment Opportunity Commission. In a calm, resolute tone before the Judiciary Committee, she recounted incidents in which she said Thomas described pornographic movies and made crude advances toward her. She said she found this behavior disgusting and told him so. Bristling with anger, Thomas came next at the witness table and began by saying, “Unequivocally, uncategorically, I deny each and every single allegation against me today… . This is a circus. It's a national disgrace and from my standpoint as a black American, … it's a high-tech lynching for uppity blacks.” [142] Thomas refused to answer questions about Hill's testimony and said he had not listened to her testimony. “I have heard enough lies,” he told one senator. Unable to determine who was telling the truth and who was lying, the committee adjourned, and Thomas won confirmation, 52–48, in October 1991.

The Court in 1995. Seated from left: Justices Antonin Scalia, John Paul Stevens, Chief Justice William H. Rehnquist, Justices Sandra Day O'Connor, Anthony Kennedy. Standing from left: Justices Ruth Bader Ginsburg, David H. Souter, Clarence Thomas, Stephen G. Breyer. (Source: Collection of the Supreme Court of the United States.)

As the new term began, liberals feared the Court would move sharply to the right. Eight of the nine justices were Republican appointees, and the only remaining Democrat, Justice White, voted with conservatives and supported overruling Roe v. Wade. In spring 1992 the Court faced challenges to its ban on school-sponsored prayers as well as a test of abortion rights.

Clarence Thomas, President Bush's 1991 appointee, became the second African American justice in Court history. (Source: Collection of the Supreme Court of the United States.)

In the 1989 Webster case involving abortion rights, Kennedy, Scalia, and White had joined Rehnquist's opinion upholding Missouri's abortion restrictions “reasonably designed … for protecting potential human life.” [143] If Souter or Thomas joined with them, a new majority could reverse the right to abortion by overturning Roe. A test case came from Pennsylvania. In response to the Webster decision, the Pennsylvania legislature had enacted a series of new abortion restrictions, including a requirement that women notify their husbands before obtaining an abortion and wait twenty-four hours for the procedure. Lawyers for Planned Parenthood challenged the state's laws as unconstitutional, contending that the restrictions infringed on a woman's right to choose abortion without interference from the state. In an amicus brief, U.S. solicitor general Kenneth Starr, representing the Bush administration, urged the Court to uphold the state law and nullify the open-ended right to abortion—that is, overturn Roe. Meanwhile, in a Rhode Island case, the Bush administration lawyer urged the Court to uphold a school principal's decision to have a cleric deliver an invocation at the graduation ceremony. Public schools should be permitted to “acknowledge our religious heritage,” Starr said in a widely repeated phrase. Starr's deputy solicitor general was John G. Roberts Jr., who had clerked for Rehnquist and succeeded him as chief justice in 2005.

For his first Supreme Court nomination, President Clinton selected Ruth Bader Ginsburg. She became the Court's second woman justice. (Source: CQ Photo/R. Michael Jenkins.)

But Rehnquist's conservative majority split apart. Three justices— O'Connor, Souter, and Kennedy—were not prepared to join Rehnquist in overturning Roe or in retreating from the ban on official prayers in public schools. Their defection became clear in the last weeks of June. The result was two stunning defeats for the conservatives and the Bush administration. In Lee v. Weisman (1992) a 5–4 majority prohibited clerics from delivering invocations at graduation ceremonies, affirming the principle of the separation of church and state. “The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State,” said Justice Kennedy. [144] Justices Blackmun, Stevens, O'Connor, and Souter agreed. The abortion ruling surprised friends and foes of Roe v. Wade. In a dramatic moment in the courtroom, Justices Kennedy, O'Connor, and Souter took turns reading portions of their sixty-page joint opinion that reaffirmed the “essential holding” of Roe: pregnant women have a right “to choose to have an abortion before viability and to obtain it without undue interference from the State,” they said in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). [145] They stressed the importance of adhering to a precedent, even one that remained in great dispute. Justices Blackmun and Stevens joined them to form a majority.

Blackmun, the author of Roe v. Wade, had expected that his landmark opinion would be overturned. “Now, just as so many expected the darkness to fall, the flame has grown bright,” he wrote. “Make no mistake about it, the joint opinion of Justices O'Connor, Kennedy and Souter is an act of personal courage and constitutional principle.” [146] The majority consisted of five justices appointed by Republican presidents, including two by Ronald Reagan and one by George H. W. Bush. Justices Thomas, Scalia, and White joined Chief Justice Rehnquist's dissent asserting that Roe should be overruled.

These two rulings, combined with the election of President Bill Clinton in November 1992, stopped the conservative momentum of the Rehnquist Court. In 1993, after thirty-one years on the bench, Justice White announced his retirement, a move that cleared the way for the first Democratic appointee in a quarter century. To fill White's seat, President Clinton nominated Ruth Bader Ginsburg, a pioneering advocate of women's rights in the 1960s and 1970s and a veteran U.S. appeals court judge in Washington. As an advocate, Ginsburg had argued that gender discrimination in law, like race discrimination, should be abolished. As a judge in the 1980s, however, she compiled a centrist record, and she won easy confirmation from the Senate, 96–3.

A year later, in 1994, Justice Blackmun retired at the age of eight-five. During his twenty-four-year tenure, Blackmun had moved across the ideological spectrum. He took his seat in 1970 as a member of the conservative group of Nixon appointees charged with quelling the liberal activism of the Warren Court. By the time he retired, Blackmun had become the Court's most liberal justice. In the year before he quit, he announced dramatically that he would no longer “tinker with the machinery of death” and would oppose all executions. Legal scholars debated whether his ideological realignment was an indicator that Blackmun had moved left or that the Court as a whole had moved right or a combination of both. As Blackmun's replacement, President Clinton nominated Stephen G. Breyer, a judge on the U.S. appeals court in Boston and a former Democratic staffer on the Senate Judiciary Committee. The Senate swiftly confirmed him, 87–9.

When Breyer took his seat in October 1994, the Court began its longest period of stability since 1812. The seven-member Court led by Chief Justice John Marshall sat together for eleven years, until the death of Justice Henry Livingston in 1823. After the establishment of a nine-member Court in 1870, the longest period of stability had been the five and a half years between the arrival of Justice Stevens in December 1975 and the retirement of Justice Stewart in July 1981. From fall 1994, there would no change for nearly eleven years, until the death of Chief Justice Rehnquist in September 2005.

A Second Wind for Conservatives: States' Rights

In April 1995, when the nation's attention was focused on the bombing of the federal building in Oklahoma City, the Rehnquist Court announced a new agenda for itself. Since joining the Court in 1972, Rehnquist had been instrumental in reviving the original Constitution's vision of limited power for Congress as well as an independent role for the states. The New Deal era and the constitutional revolution of 1937 ushered in a period in which the Court deferred to Congress when it exercised its powers for regulating commerce, usually at the expense of state power. That era of deference came to an end on April 26, when the Court announced its decision in an obscure gun possession case from San Antonio. “We start with first principles. The Constitution creates a Federal Government of enumerated powers,” the chief justice said in United States v. Lopez (1995). “As James Madison wrote, ‘the powers delegated … to the federal government are few and defined. Those which are to remain in the States governments are numerous and indefinite.'’” [147] The 5–4 decision struck down the Gun-Free School Zones Act of 1990 because “the possession of a gun in a local school zone is in no sense an economic activity,” Rehnquist said. If the Court were to uphold such broad-reaching federal measures, “there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.” [148] Justices O'Connor, Scalia, Kennedy, and Thomas agreed.

A year later, the Court took up another obscure dispute—this time, over the rules for gambling on Indian lands—to announce a broad principle of law. States have a “sovereign immunity” that shields them from being sued by persons whose rights under federal law have been violated, the Court said in Seminole Tribe of Florida v. Florida (1996). [149] Congress does not have power under the Commerce Clause to puncture this shield of immunity, the 5–4 majority held. Rehnquist said this principle of state sovereign immunity was implicit in the Constitution. The strongest textual reference, he argued, is in the Eleventh Amendment, which states, “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The typical cases coming before the federal courts, however, involved citizens or state employees suing an agency in their own state for violating federal law. “We have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition … which it confirms,” Rehnquist said. “Each state is a sovereign entity … [and] it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” [150] The four dissenters—Justices Breyer, Ginsburg, Souter, and Stevens—argued that the ruling would undercut the enforcement of dozens of federal laws, including antidiscrimination and antipollution measures as well as laws on copyrights, patents, bankruptcy, and worker safety.

The Rehnquist Court also moved to stop affirmative action and other measures intended to benefit minorities. In Adarand v. Pena (1995) the Court in a 5–4 decision stated, “All racial classifications, imposed by whatever federal, state or local governmental actor, must be analyzed … under strict scrutiny.” [151] In Missouri v. Jenkins (1995) the Court called a halt to a long-running and costly desegregation plan for the Kansas City schools and signaled that federal judges elsewhere should step back from supervising public schools. [152] The Court also struck down black-majority congressional districts in Georgia and North Carolina. After the 1990 census, the southern states had been pressed to redraw the lines of their legislative districts with the hope of electing some African Americans to represent the sizable minority population. In Shaw v. Reno (1993), however, the Court ruled racial gerrymandering unconstitutional, even when done for the purpose of electing minorities to office. State lawmakers violate the Equal Protection Clause whenever race becomes a “predominant factor” in drawing lines, the Court said in Miller v. Johnson (1995). [153] These decisions, like the Lopez and Seminole Tribe rulings, came by the same 5–4 margin. The majority consisted of Chief Justice Rehnquist, and Justices O'Connor, Scalia, Kennedy, and Thomas, while Justices Stevens, Souter, Ginsburg, and Breyer dissented.

Rehnquist and his colleagues also moved to strengthen the free speech rights of religious activists and church groups. Since the 1960s, when the Court struck down state-sponsored school prayers, the Court's opinions in religion cases had stressed the First Amendment's ban on “an establishment of religion” by public officials. Beginning in the mid-1990s, the Rehnquist Court emphasized the free speech rights of Christian students in schools and colleges. A pivotal decision came in 1995, when the Court ruled that Christian students who published a campus magazine with an evangelical theme at the University of Virginia were entitled to the same university support as other campus publications. The Constitution requires “government neutrality” toward religion and does not permit “disfavored treatment” for those who espouse religious views, the 5–4 majority said in Rosenberger v. University of Virginia (1995). [154]

Defeat for Term Limits and a Win for Gay Rights

In a rare win for the Court's liberal wing, in 1995 the justices dealt a crippling blow to the term limits movement. Arkansas and twenty-two other states had adopted laws, mostly through ballot initiatives, that limited how long their senators and representatives could serve in Congress. Typically, the state measures limited senators to no more than two six-year terms, while representatives were limited to three two-year terms. In U.S. Term Limits v. Thornton (1995) the Court by a 5–4 vote ruled that the states were not free to add new requirements for federal lawmakers beyond the basic qualifications of age, citizenship, and residence. [155] Kennedy joined the liberal majority, saying it would violate “fundamental principles of federalism” to allow states to set limits for elected federal lawmakers. (See box, “State Term Limits for Federal Officeholders?” p. 453.) The emerging gay rights movement won its first victory in the Supreme Court in 1996, when the justices struck down a Colorado voter initiative that voided all local and state antidiscrimination measures that mentioned homosexual, lesbian, or bisexual orientation. In a 6–3 decision in Romer v. Evans (1996), the Court said this initiative was “born of animosity” toward homosexuals and violated the Equal Protection Clause of the Fourteenth Amendment. [156] Justices Kennedy and O'Connor joined the liberal faction of Justices Breyer, Ginsburg, Souter, and Stevens. In dissent, Justice Scalia called the Colorado law “a modest attempt … to preserve traditional sexual mores against the efforts of a politically powerful minority.” [157]

Also for the first time in 1996, the Court struck down a jury's punitive damages verdict as “grossly excessive” and unconstitutional. For more than a decade, the justices had been troubled by multimillion dollar jury verdicts intended to punish corporations and insurers. In a series of false starts, however, they had failed to agree on when such verdicts become so extreme as to be unconstitutional. In Alabama, a jury had handed down a $4 million punitive verdict on behalf of a Birmingham doctor who complained that his new BMW had been repainted and touched up to cover scratches after it was shipped from Germany. In BMW v. Gore (1996) the Court in a 5–4 decision said such exorbitant verdicts punished the company unfairly and violated its right not to be deprived of property without due process of law. [158] Justices Breyer, Kennedy, O'Connor, Souter, and Stevens, formed the majority.

Setbacks for Clinton

President Clinton suffered a stinging defeat in 1997, when the Court unanimously rejected his claim that the sexual harassment lawsuit filed against him by Paula Corbin Jones, a former Arkansas state employee while Clinton was governor of that state, should be put on hold until he left the presidency. The “current occupant” of the office of the presidency has no shield of immunity for being sued for alleged private wrongdoing, the Court said. The decision in Clinton v. Jones (1997) set in motion the events that led to Clinton's impeachment on the ground of perjury by the U.S. House of Representatives the next year because Jones's lawyers were authorized to question the president under oath about his relationship with White House intern Monica Lewinsky. [159] Clinton suffered another defeat when the Court voided part of the Brady Act on gun control. A 5–4 decision held that Congress may not “commandeer” local sheriffs and require them to conduct background checks on new buyers of handguns. [160]

The Court flexed its muscles when dealing with Congress as well. In a 6–3 decision, the justices voided a popular, bipartisan measure that strengthened religious liberty. In the Religious Freedom Restoration Act of 1993, Congress had voiced its disagreement with the Court's announced limits on religious freedom in Oregon v. Smith (1990) and told state and local agencies that they may not infringe religious liberty. [161] Insistent on having the last word, the justices rejected the 1993 law as unconstitutional and stressed that the Court had the power to define the rights set forth in the Constitution. “Any suggestion that Congress has a substantive, non-remedial power” to define constitutional rights is off base, wrote Justice Kennedy in City of Boerne v. Flores (1997). “When the Court has interpreted the Constitution, it … embraces the duty to say what the law is.” [162] A year later, the justices voided another popular, bipartisan measure, the Line Item Veto Act. Congress had authorized the president to “cancel” certain spending items in a large appropriations bill, but the Court said the Constitution gave the chief executive only two choices when presented with a bill passed by Congress—sign it into law or veto it, the Court said in Clinton v. City of New York (1998). [163]

On June 26, 1997, the Court embraced a new era in communications, but simultaneously refused to endorse a new personal right to control one's death. In a 9–0 decision, the justices held that messages and transmissions on the Internet are entitled to full free speech protections, and they struck down a federal law that made it a crime to post “indecent” material on Web sites that could be viewed by minors. [164] Also by a 9–0 vote, the Court reversed two lower courts that had held that terminally ill persons had a right to die with the aid of a physician. Laws against suicide are “deeply rooted” in the Anglo-American legal tradition, said Chief Justice Rehnquist, and if they are to be changed, the decision should be made by voters and elected lawmakers, not judges. [165]

Bush v. Gore

In fall 2000 the Supreme Court emerged as the major player in the presidential race between Texas governor George W. Bush and Vice President Al Gore. The candidates gave the voters a clear choice: Bush promised to appoint new justices in the mold of conservative justices Scalia and Thomas, while Gore responded that he would seek liberals who would follow in the path of the late justices Brennan and Marshall. It was clear that the new president would have the potential to reshape the Court, but no one foresaw that the Court itself would have the final word on who that president would be.

The legal battle that decided the presidency began two days after nearly 100 million Americans cast their ballots on November 7, 2000. Trailing by 327 votes in the battle for Florida's crucial 25 electoral votes, Vice President Gore asked county courts in Florida for a hand recount of paper ballots that were not tallied by the tabulating machines. He won a pair of victories in the Florida Supreme Court, including a 4–3 decision on December 8 that called for a county-by-county hand count of the thousands of remaining untabulated paper ballots. Within hours of the state court's decision, however, Bush's lawyers filed an emergency appeal at the Supreme Court asking for the recount to be halted on the ground that Bush would suffer “irreparable harm” if the state went ahead with a “standardless recount.” In a 5–4 vote, the Court stopped the recount at midday on December 9 with an emergency order that told the recounting teams to suspend their work. On December 12, the Court ended the Florida recount by the same 5–4 vote. The Florida courts had failed to set precise standards for deciding when a defective ballot could be counted as a legal vote, and this violated the Equal Protection Clause, the Court held in Bush v. Gore (2000). [166] In addition, it was too late to set the standards and to undertake a full and fair recount, the majority concluded.

The Supreme Court ultimately decided the 2000 presidential election between Gov. George W. Bush of Texas and Vice President Al Gore. On December 1, 2000, the Court heard arguments in an appeal filed by Bush to reverse the Florida Supreme Court's decision to include some hand-counted ballots in the state's final tally. Here, Bush and Gore supporters rally outside the Court before the hearing. The final decision in Bush v. Gore, handed down on December 12, 2000, barred any further recounts and cleared the way for Bush to become president. (Source: CQ Photo/Scott J. Ferrell.)

The five justices who had adopted the principle of state sovereignty in the 1990s—Chief Justice Rehnquist and Justices Kennedy, O'Connor, Scalia, and Thomas—formed the majority to take the election case from the Florida judges. Justices Breyer, Ginsburg, Souter, and Stevens dissented. On January 20, 2001, the chief justice administered the oath of office to the new president, George W. Bush of Texas. The Court's brief, but decisive intervention in presidential politics seemed to have little long-lasting impact on the justices or on the public's perception of them. After the Christmas recess, the justices returned to hearing and deciding cases as if nothing unusual had transpired.

Although Chief Justice Rehnquist could usually muster a conservative majority, Justices O'Connor and Kennedy did not always vote predictably in cases involving religion, abortion, and the death penalty. In June 2000 O'Connor and Kennedy rejected as unconstitutional the notion of school-sponsored prayers led by students, but they voted with the conservative majority to uphold the use of federal aid to buy computers in parochial schools. [167] The same year, O'Connor cast the decisive fifth vote to strike down Nebraska's criminal ban on what abortion foes call “partial birth” abortions, stating that this restriction on doctors might jeopardize the health and safety of some women undergoing abortions. Kennedy, who had upheld the basic right to choose abortion in 1992, dissented, calling this medical procedure “abhorrent” and immoral. [168] O'Connor and Kennedy cast the deciding votes in a 2002 decision that barred states from executing defendants who were mentally retarded and in a 5–4 decision to uphold Ohio's use of vouchers to pay for student tuition in religious schools. [169]

In 2003 the term ended in June with a surprisingly strong endorsement for affirmative action and gay rights. “[I]n a society like our own … race unfortunately still matters,” Justice O'Connor said in Grutter v. Bollinger, upholding an affirmative action policy at the University of Michigan Law School. The justices reaffirmed Lewis Powell's view in the Bakke case from a quarter-century earlier that colleges and universities could consider a student's race in admissions, so long as they steered clear of imposing quotas. [170] In a 6–3 decision in Lawrence v. Texas striking down a Texas antisodomy law, Justice Kennedy wrote for the Court that gays and lesbians are “entitled to respect for their private lives,” not moral and legal condemnation. Kennedy's opinion flatly overturned the 1986 ruling in Bowers v. Hardwick that had condemned homosexuality as outside the Anglo-American legal and moral code. “[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Kennedy wrote in his closing passage. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” With these decisions, the Court showed again that it played a central role in American life as the final arbiter of a Constitution that endures and evolves. [171]

Justice Sandra Day O'Connor's plurality opinion in Hamdi v. Rumsfeld (2004) took a middle ground between competing arguments regarding criminal trials for citizen-detainees. Yaser Esam Hamdi, pictured here in June 2001, was captured in Afghanistan and transferred to a U.S. naval brig in Charleston, South Carolina. Hamdi, along with suspected terrorist José Padilla, were held for two years without charges or access to lawyers. (Source: AP Photo/Asharq-al Awsat.)

The War on Terror, Guantanamo Bay, and a Clash with the President

Following the attacks of September 11, 2001, President Bush ordered an aggressive war against terrorists and those who harbored them. U.S. troops invaded Afghanistan to topple the Taliban regime that had protected Osama bin Laden, the Saudi-born financier of the al Qaeda network. Hundreds of suspected terrorists and Taliban fighters were captured and eventually imprisoned at the U.S naval base at Guantanamo Bay, Cuba. Bush and Secretary of Defense Donald Rumsfeld designated these prisoners as “unlawful enemy combatants.” As such, they were neither prisoners of war protected by the Geneva Conventions nor criminals who would face charges and a trial. Even more controversial was the administration's decision to apply this designation to two American citizens who were being held in the United States. One of them, Yaser Hamdi, was born in Louisiana, but raised in Saudi Arabia. He was captured with the Taliban and held at a Navy brig in Norfolk, Virginia. The other, José Padilla, a New York City native, was arrested at Chicago's O'Hare Airport in 2002 on the suspicion that he was plotting with al Qaeda to detonate a radioactive bomb. He was imprisoned in solitary confinement at a Navy brig in South Carolina. Bush's bold use of his presidential authority set the stage for a clash with the Court.

In 2004 the Court moved to rein in the Bush administration and its go-it-alone approach to the war on terror. “A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens,” wrote Justice O'Connor for the Court. [172] The justices had taken up appeals from Hamdi, Padilla, and the Guantanamo detainees to test the limits of the administration's detention policy. In Hamdi's case, eight of the nine justices (Thomas dissented) rejected the administration's approach. “We hold that … due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker,” O'Connor wrote for a six-member majority. Two others, Justices Scalia and Stevens, would have gone further and required the government either to try Hamdi for a crime or release him.

Chief Justice William H. Rehnquist's former law clerks, including his successor, John Roberts Jr., carry Rehnquist's casket into the Court building on September 6, 2005. Rehnquist lay in repose in the Great Hall of the Court for two days before his funeral. (Source: AP Photo/Pablo Martinez Monsivais.)

A separate 6–3 majority ruled the foreign prisoners held at Guantanamo had the right to seek relief from a judge. In Rasul v. Bush (2004) Stevens said the federal right to habeas corpus extends to persons who were imprisoned in a territory under the sole control of U.S. authorities. [173] Padilla's appeal was rejected on a technicality. The Court said his lawyers should have filed a writ of habeas corpus in South Carolina where he was being held, not in New York where he was held shortly after his arrest. Padilla was eventually released from military custody and tried and convicted in a criminal court of aiding terrorists. The decisions were seen as a rebuke to the Bush policies, but they did not force immediate changes.

In late October 2004, just a week before the nation went to the polls, Chief Justice Rehnquist, seventy-nine, issued an ominous statement: he had been diagnosed with thyroid cancer. Rehnquist spent several months at home recuperating from treatment. Clearly ailing and walking with a cane, the chief justice swore in President Bush for his second term on January 20, 2005. Rehnquist returned to the Court in the spring, but the term ended on a fractured note. The justices issued a split decision on whether the government's display of the Ten Commandments violated the First Amendment's ban on “an establishment of religion.” By a 5–4 vote, the Court upheld as constitutional a granite monument displaying the commandments that had stood for four decades amid other statutes and monuments on the grounds of Texas state capitol in Austin. [174] A separate 5–4 majority ruled unconstitutional the recent posting of the commandments in a county courthouse in Kentucky. [175] Justice Breyer explained that the courthouse posting of the Ten Commandments in Kentucky, unlike the Texas monument, was a blatant effort by public officials to promote a religious message.

The Court also angered property-rights activists when it upheld action by the city of New London, Connecticut, to seize several homes to make way for a riverside redevelopment project. The city was prepared to pay Susette Kelo for her house—and indeed, to pay far more than it was worth on the market—but she did not want to sell. She said the seizure violated her rights under the Fifth Amendment, which says “private property [shall not] be taken for public use without just compensation.” A 5–4 majority, however, agreed the city could seize Kelo's house as part of a plan to bring new jobs and tax revenue to a depressed downtown, so long as she was compensated fairly. [176] A strong dissent by O'Connor echoed across the country. “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner,” she wrote in a dissent joined by Rehnquist, Scalia, and Thomas.

On the term's last day, the chief justice reported how the members of the Court had voted in the final decisions. And, rather than announce his retirement, as had been expected, Rehnquist said only that the Court was in recess for the summer. A few days later, however, Justice O'Connor, seventy-five, said she was retiring after twenty-four years. The first woman to serve on the Court, O'Connor had become its most influential justice by virtue of her role as the swing vote in its biggest cases. O'Connor's retirement left the president and his aides scrambling to decide who should replace her. The answer came on July 19, 2005, when Bush announced on television that he was naming Judge John G. Roberts to succeed O'Connor, even though he was considered the leading candidate to succeed the chief justice. Roberts was a familiar figure in Washington's legal circles. After clerking for Rehnquist, he had worked as a lawyer in the Reagan White House, served as deputy solicitor general under President George H. W. Bush, argued effectively before the Supreme Court as a private lawyer, and had been appointed a U.S. appeals court judge by President Bush in 2003.

On September 3, 2005, before the Judiciary Committee could begin hearings on Roberts's nomination, Rehnquist died. Just three days later, President Bush announced he was nominating Roberts to succeed Rehnquist as chief justice. The O'Connor vacancy would have to wait. It had been eleven years since the last vacancy on the Court; now there were two. The Senate confirmed Roberts, 78–22, on September 29. Roberts, age fifty, was the youngest chief justice since John Marshall, who was forty-five when he took the oath in 1801.

President Bush's first nominee to replace O'Connor was Harriet Miers, his longtime Texas lawyer and White House counsel. The reaction to the announcement was immediate and unfavorable. Conservative activists claimed that Miers had no track record as a judge and no significant legal writings. Moreover, they saw no clear evidence that she had conservative views on the major issues before the Court. Just weeks after selecting Miers, Bush announced that she was withdrawing her name from consideration.

The Court in 2006. Seated from left: Justices Anthony Kennedy, John Paul Stevens, Chief Justice John Roberts, Justices Antonin Scalia, David H. Souter. Standing from left: Justices Stephen G. Breyer, Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito. (Source: Collection of the Supreme Court of the United States.)

Waiting in the wings was Samuel A. Alito Jr., an experienced appeals court judge from New Jersey. Like Roberts, he had come up through the ranks of the Reagan administration in the 1980s, and he enjoyed the strong support of his former colleagues. President Bush announced his appointment on October 31, and, although Democrats criticized him as being too conservative, he won confirmation from the Senate on a 58–42 vote on January 31, 2006. The relatively close, party-line vote for Alito was another indication of the partisan divide in the Senate.

The Roberts Court picked up where the Rehnquist Court had left off. The main difference was that without O'Connor, Justice Kennedy stood alone in the middle. During the term that ended in June 2007, the Court decided twenty-four cases by 5–4 votes, and Kennedy was in the majority every time. In several areas, including abortion, campaign funding, and school integration, the Roberts majority moved the law to the right. The Court upheld the federal Partial Birth Abortion Ban Act in a 5–4 decision and cleared the way for more restrictions on abortion. [177] With O'Connor in the majority, the Court had earlier struck down a state law banning certain late-term abortions because it did not include an exception to protect the health of a pregnant woman. But with Alito in O'Connor's seat, a 5–4 majority upheld the federal restrictions on abortions, even though it too lacked an exception for using the disputed procedure to protect a patient's health. Although the Court had earlier upheld the McCain-Feingold Act, including its ban on corporate-funded broadcast ads that mention a candidate in the month before the election, Roberts said corporate groups had a free speech right to run ads that mention candidates, so long as they stop short of urging their election or defeat. [178] And the Court dealt a blow to voluntary school integration plans. In a pair of 5–4 rulings, the Court struck down the use of race-based assignment policies in Seattle and Louisville after white parents complained their children were excluded from their nearest school. “The way to stop discrimination on the basis of race,” Robert said, “is to stop discriminating on the basis of race.” [179]

Justice Sonia Sotomayor meets with President Barack Obama prior to her Investiture Ceremony at the Supreme Court September 8, 2009. (Source: © Pete Souza/White House/Handout/CNP/Corbis.)

Divided Court on Gun Rights and Habeas Corpus

Chief Justice Roberts said he hoped for a more united Court, or at least one where most of the justices could agree on narrow rulings of law. Such outcomes would lessen the impression that legal rulings followed political lines. But the justices remained badly divided between their liberal and conservative factions, with Justice Kennedy often holding the deciding vote. In June 2008 Kennedy spoke for a 5–4 majority and said the Constitution gave the Guantanamo prisoners a right to seek their freedom before judge. The “privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights,” Kennedy wrote, and he held this right extends to foreigners held as long-term prisoners at Guantanamo. The ruling in Boumediene v. Bush (2008) not only rejected the president's military order, but also struck down as unconstitutional the provisions in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, which denied habeas corpus rights to an “alien” detained as “an enemy combatant.” In dissent, Roberts complained that the president, Congress, and the American people “today lose a bit more control over the conduct of this nation's foreign policy to unelected, politically unaccountable judges.” [180] And for the first time, the Court ruled that the Second Amendment protects an individual's right to have a gun for self-defense. In the past, the Court had described the amendment as protecting a state's right to maintain “a well-regulated militia.” But in District of Columbia v. Heller (2008) Justice Antonin Scalia spoke for a 5–4 majority and concluded that throughout Anglo-American history, citizens were understood to have a right “to keep and bear arms” to protect themselves, whether or not they served in an organized militia. Scalia said, however, this ruling would not affect most long-standing gun-control measures. [181]

Justice Souter, the reserved New Hampshire native who never took to the ways of Washington, announced in April 2009 that he planned to retire at the end of the term. At sixty-nine, he was almost young by the standards of the Supreme Court. His surprise decision to step down gave an early opportunity to the new president, Barack Obama. In May the nation's first African American president announced he had selected the first Hispanic for the Court: Judge Sonia Sotomayor of New York. Born of Puerto Rican parents and raised in a Bronx housing project, Sotomayor had worked as a New York City prosecutor, a federal district judge, and U.S. appeals court judge. She had taken few controversial stands on the bench, and the Senate confirmed her, 68–31, in August. Justice Stevens, the Chicago Republican who in his later years became the Court's most outspoken liberal, announced his retirement in April of 2010, a few days before his 90th birthday. President Obama chose Solicitor General Elena Kagan to replace him.

The Court in 2009. Seated from left: Justices Anthony Kennedy, John Paul Stevens, Chief Justice John Roberts, Justices Antonin Scalia, Clarence Thomas. Standing from left: Justices Samuel Alito, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor. (Source: © Gary Fabiano/Pool/Corbis.)

Sotomayor's ascension confirmed two trends of the modern Court. She was a veteran appeals court judge, and she won Senate confirmation on a mostly party-line vote. When Alito replaced O'Connor in 2006, all nine justices—for the first time—had come to the Court from a federal court of appeals. Souter was almost an exception, with only two months' service on the U.S. appeals court in Boston. By contrast, Sotomayor had served eleven years on the U.S. court of appeals in Manhattan before her nomination.

The level of partisan rancor over the Court seemed to grow with each nomination. No longer could a president's well-qualified nominee count on an overwhelming vote of support in the Senate, a decided change from the 1970s and 1980s. Sotomayor joined a Court whose three senior justices—Stevens, Scalia, and Kennedy—were confirmed by unanimous votes in the Senate. Ginsburg had only three “no” votes in the Senate in 1993. But Sotomayor's immediate predecessors had won confirmation thanks to support from the president's party in the Senate. Alito won confirmation in a Republican-controlled Senate, and only four Democrats supported him. The forty-two senators who voted against him included Barack Obama. In 2009 Sotomayor won confirmation when Democrats controlled the Senate, but only nine Republicans voted for Obama's nominee, while thirty-one voted “no.”

What can be done to improve the tone of confirmation hearings, reduce the partisan bickering, and elicit meaningful answers from the nominees? In The Next Justice, Princeton professor Christopher L. Eisgruber says senators should press nominees to explain their philosophy for deciding cases. A promise to be “a mere umpire” calling balls and strikes should not suffice, he says. [182] Benjamin Wittes, a former editorial writer for the Washington Post, offers the opposite recommendation. Do away with the confirmation hearings entirely, he advises. “Live testimony by nominees represents a historical aberration, born in original sin from which it has never recovered. It also contributes remarkably little to mature Senate consideration of nominees,” he writes. [183] Wittes argues that justices should be confirmed or rejected based on their record and on the recommendation of those who know their work, as was the practice prior to the 1960s. Still, few foresee an end to the intense partisan division over the Court. “For better or worse, the ill-fated 1987 nomination of Robert Bork continued to cast its long and influential shadow over all the high court nominations in its wake,” concludes David A. Yalof, a University of Connecticut political scientist. [184]

The political division might simply be inevitable, a recognition of how high the stakes are with each new appointment. The Court had assumed a central role in American government, and on many fronts and on the greatest of controversies—on abortion and the death penalty, on race and religion, on privacy and the police, on gay rights and gun rights—the justices have made it clear they are prepared to have the final word on the Constitution and the law.


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1 David G. Savage, The Conservative Revival: From 1969 to the Present, in Guide to the U.S. Supreme Court 64-82 (5th ed., 2011),
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