Pubdate: Thu, 30 Jun 2005
Source: Los Angeles Times ( CA )
cohen30jun30,1,3426581.story?ctrack=3D1&cset=3Dtrue
Copyright: 2005 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Author: Andrew D.  Cohen
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)
Cited: Gonzales v.  Raich ( www.angeljustice.org/ )
Note: Andrew D.  Cohen is a legal analyst for CBS News

THE HIGH COURT, BETWEEN THE LINES

There are memorable Supreme Court terms and then there are Supreme 
Court terms like the one we have just witnessed.  No one retired 
between the first Monday of October 2004 and this past Monday.  There 
were no seminal decisions affecting the legal war on terrorism.  No 
grand constitutional crises were averted.  And nothing the justices 
decided is likely to fundamentally alter the political, cultural or 
religious tensions that now reign.

Every term, just like this term, the court reapportions, in ways 
large and small, rights and responsibilities, power and priorities, 
rules and standards, liabilities and limitations.  Under the 
Constitution, the justices more often tinker than they dismantle, and 
this past term surely was a term of tinkering.

For example: Today, wine drinkers in one state may buy wine directly 
from vineyards in another state.  Today, the feds may prosecute users 
of medical marijuana whose doctors have prescribed the drug for them 
under valid state law.  Today, police may use search dogs to inspect 
a car even if they have no reasonable suspicion that there are drugs 
in that car.  Today, it is clear that local officials could, for 
economic purposes and if state law permits it, take private property 
for just compensation under eminent domain powers.

These are all important rulings; they just aren't game-changers.  But 
just because this term did not generate the type of momentous ruling 
that people will be talking about for decades doesn't mean that there 
wasn't a remarkable trend or two that could be discerned from the 
scores of judgments rendered by the justices.  The trend that 
resonates with me is one that surely must concern judicial and 
political conservatives alike.

The court's majority this term consistently and sometimes 
passionately rose to protect the interests of criminal defendants, 
who have been some of the most consistent, if unmourned, legal 
"victims" of the so-called Rehnquist Revolution.  And it did this to 
the visible and eloquent dismay of the three lions of the court's 
right: the chief justice and Justices Antonin Scalia and Clarence Thomas.

This niche trend is no small thing.  It suggests that a working and 
stable majority on the court feels a growing level of discomfort 
toward some of the substantive and procedural rollbacks we've seen in 
the rights of criminal defendants, especially in capital cases, over 
the past generation.

One year ago today, for example, a juvenile who murdered before 
reaching age 18 could be given the death penalty.  Today, that option 
is no longer available.  One year ago, California law made it more 
difficult for a defense attorney to challenge a prosecutor's choice 
to exclude potential jurors.  Today, that state law follows the 
federal constitutional rule designed to ensure that prosecutors do 
not exclude jurors based upon race.

One year ago, Texas prosecutors had gotten away with a shameless 
procedure that amounted to racial bias in jury selection.  That 
procedure is now unconstitutional.  One year ago, it was possible for 
a state to bar financial assistance for poor people who pleaded 
guilty to crimes but who then wanted to appeal their 
sentences.  Today, that is unconstitutional.

One year ago, a prisoner seeking to raise a constitutional claim 
about her parole process had to overcome a nearly insurmountable 
appellate hurdle.  Today, that hurdle, though still high, is much lower.

Taken together, these rulings say that there's a majority on the 
court no longer willing to wait for lower courts or state legislators 
or Congress to ensure more fairness and accuracy in capital cases in 
particular.

These decisions are some of the practical consequences of the 
concerns Justice Sandra Day O'Connor raised in a speech four years 
ago when she said: "If statistics are any indication, the system may 
well be allowing some innocent defendants to be executed....  Serious 
questions are being raised about whether the death penalty is being 
fairly administered in this country."

This is not to say that the court suddenly has gone "soft on crime." 
There were plenty of rulings this past term that count as "tough on 
crime" verdicts.  Criminal defendants and convicted felons still have 
it much tougher on appeal than in decades past.  But the relentless 
"refinement" ( read: narrowing ) of procedural rules governing 
criminal cases seems to have ebbed.  The legacy of the Rehnquist 
court is secure.  But it is still being shaped -- and more subtlety 
than anyone might have expected.

The world the Gang of Nine will return to on the first Monday in 
October clearly will be different than the one they leave behind today.

The question, however, is whether the faces on the bench will be 
different a few months from now.  If so, a new era may begin.  If 
not, the Rehnquist court will give us an opportunity to see whether 
this term's trend continues or just fades away.