Monday, July 04, 2005

High Court's junior member a power broker
High Court's junior member a power broker

Associated Press Writer

WASHINGTON (AP) -- The power broker at the Supreme Court this term was the "junior justice," Stephen Breyer. He was on the winning side in the 10 biggest cases of the year, covering capital punishment, medical marijuana, property rights and Ten Commandments displays.

By contrast, Chief Justice William H. Rehnquist was in the majority only three times as his conservative bloc splintered again and again.

Of course, the top news from the court was the retirement of Justice Sandra Day O'Connor. She announced on Friday that she would leave as soon as President Bush's nominee is confirmed.

It is the first vacancy on the court since 1994, the longest stretch since the early 1800s.

Bush could have a second seat to fill should the 80-year-old Rehnquist, who has thyroid cancer, decide to step down, too. The widower announced his illness in October and his future on the court is very much in doubt.

O'Connor's pending departure means Breyer finally will shed the "junior justice" title he has held for 11 years. As the newest member of the court, he is saddled with such menial duties as answering the door when justices hold weekly private meetings.

But there was nothing back bench about the performance by the Clinton appointee this session.

The 66-year-old former college professor and congressional lawyer was a pivotal vote in two cases that set a new standard for religious displays in government buildings.

Breyer, known for his amiable style, also is credited with working out a compromise that salvaged federal sentencing guidelines. It was an important decision because about 64,000 people are sentenced in federal courts each year.

"He has such a well-developed sense of diplomacy that it's not surprising to see his long-term moderate vision is now being embraced by the court," said Georgetown University law professor Neal Katyal, a former Breyer law clerk.

Among Breyer's surprises this term was his critical role in two Ten Commandments cases decided on the final day of the term. Together, the rulings made clear that overtly religious displays are unconstitutional, but historic ones are allowed. Breyer was the only justice in the majority on both.

"He has become the most pragmatic person on the court. He has a way of taking the temperature of society," said Marci Hamilton, a former O'Connor clerk whose new book is "God vs. The Gavel," about courts and religion.

Overall this session, the court ruled in about 80 cases; one-third of them were resolved on 5-4 votes.

Usually the five conservatives, sometimes known as the "Rehnquist five," vote together in about half of the 5-4 decisions. This year they were together in just five such rulings.

O'Connor and Anthony Kennedy, both appointed by President Reagan, were not the swing voters they usually are on sharply divided issues.

"Almost all of the court's members found themselves in unusual alignments as novel questions came before them," said Thomas Goldstein, a lawyer who argues before the court and tracks voting trends.

Rehnquist disagreed with rulings that made it unconstitutional to execute juvenile murderers; said federal drug agents did not have to honor state medical marijuana laws; barred a Ten Commandments display in Kentucky; and empowered local governments to seize people's homes for use for projects that will generate tax revenue.

"This term confirms that Chief Justice Rehnquist's legacy on the court is more in the nature of a correction than a revolution," said Richard Garnett, a Notre Dame law professor and former Rehnquist clerk.

Breyer filed 11 dissents, although none in major cases. He read a dissent from the bench in one case, to demonstrate his dissatisfaction when the court ruled against a Tennessee death row inmate who wanted to pursue more appeals.

Overall, however, the court was sympathetic to claims that inmates had been treated unfairly. The court overturned the death sentences of four inmates. In a fifth case, the justices ruled that states cannot put to death killers who were not at least 18-years-old at the time of the crime.

Playing a pivotal role in the capital punishment cases, and others, was the court's oldest member, 85-year-old John Paul Stevens. Stevens presided on the bench while Rehnquist was receiving radiation and chemotherapy treatments. Rehnquist was off the bench for five months. He voted in most of the cases, however.

Stevens, on the court since 1975, had taken the unusual step of calling for an end to juvenile executions in 2002, but he did not have the votes to accomplish it. He called the executions a "relic of the past" and "inconsistent with evolving standards of decency in a civilized society." This time, Stevens prevailed with the vote of Kennedy.

"People forget that Justice Stevens has also been on the court a long time, building a legacy of his own," Garnett said.


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