Minimalism Rules

By Douglas W. Kmiec

In its fourth term, the Roberts Court deployed a functional minimalism that resolved cases while leaving major issues for another day. Although the last term included significant decisions, the departure of an enigmatic, modest justice proved to be the biggest news of all.

Exit Souter, Enter Sotomayor
A kindly man, David Souter announced his resignation last spring after 19 years on the high bench. He will be remembered fondly by progressives for weeping over Bush v. Gore (531 U.S. 98 (2000)) and despised by conservatives for reaffirming Roe v. Wade (see Planned Parenthood v. Casey, 505 U.S. 833 (1992)). His opinions were often slow and meandering, in sharp contrast to his clarifying and persistent questions during oral argument. In Justice Souter's final case, he found that a school's strip search of a 13-year-old girl violated her privacy rights under the Fourth Amendment (Stafford Unified School District #1 v. Redding, 129 S. Ct. 2633 (2009)).

His replacement, Second Circuit Judge Sonia Sotomayor, has similar case-specific habits, but she also carries a long-standing passion for minorities and the poor. It remains to be seen whether life tenure on the high court will free her to express grander statements of philosophy.

Judicial Minimalism
The facial/as-applied distinction?upholding a law in general while postponing review of any troubling application for another day?is the principal means by which Chief Justice John Roberts secures harmony on a Court whose natural habitat is 5?4 territory, with Justice Anthony Kennedy a highly evolved judicial species: modestly partial to the right hemisphere, but capable of thriving, as the kids say, wherever.

This flourishing methodology took on a new wrinkle last term in Northwest Austin Municipal Utility District No. One (NAMUDNO) v. Holder (129 S. Ct. 2504 (2009)), which tested the validity of the 25-year extension of the Voting Rights Act (VRA) (42 U.S.C. §§ 1973a-1973aa-6). Following oral argument, Court watchers predicted that a razor-thin 54 majority would find the impediments to minority ballot access a thing of the past and invalidate the VRA's extension. After all, judicial notice would be myopic if it ignored the strength of minority representation in Congress or the very popular man now occupying the Oval Office.

Surprise! Only Justice Clarence Thomas concluded that racial progress made the VRA unnecessary. Chief Justice Roberts persuaded seven other justices to uphold the statute as applied to the small utility district (because the justices construed the VRA as allowing a possible exemption). But the Court sent a signal to Congress that absent some retooling?such as narrowing the statute's geographic scope, giving more latitude for electoral changes without pre-clearance, or providing evidence of ongoing discrimination?section 5 of the VRA would be blue-penciled. Call it a case of prospective facial invalidity.

Of course, when the Chief is able to count to five, he does so?no sense putting off everything for tomorrow. In Ricci v. DeStefano (129 S. Ct. 2658 (2009)), the Court decided that the city of New Haven's fear of statutory liability for basing promotions on an employment exam with a racially disparate impact did not justify tossing out the test and disadvantaging white firefighters who scored high?at least not without a strong evidentiary basis that the test was otherwise flawed.

A five-justice majority also decided to make it harder to prove age discrimination. In most civil rights claims?those based on race or gender, for example?it is enough for a plaintiff to demonstrate that the prohibited factor motivated an employer's action. But in Gross v. FBL Financial Services, Inc. (129 S. Ct. 2343 (2009)), the Court held that under the Age Discrimination in Employment Act (29 U.S.C. §§ 621?634) the plaintiff must show age was the decisive factor. Another 54 opinion, authored by Justice Thomas (14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009)), upheld a collective bargaining agreement that required the arbitration of statutory discrimination claims.

Remember the War on Terror?
A civil rights claim also failed, again 5?4, against high-ranking government officials when, following the 9/11 attacks, detainees of Arabic descent were said to have insufficient proof of the officials' direct participation in alleged torture and abuse (Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)). Mere knowledge of the bad acts is not enough to be held liable, said Justice Kennedy. But a trial judge in California seems to be waterboarding his way in the opposite direction, ruling that so-called dirty bomber Jose Padilla could keep a similar lawsuit alive against UC Berkeley law professor John Yoo, whose personal involvement in drafting legal memos is alleged to be greater than that of the government officials in Iqbal (Padilla v. Yoo, 2009 WL 1651273 (N.D. Cal. 2009)).

Criminal Trials
Law enforcement cases remained a plentiful staple of the Court, and it was not a good year for defendants, until Justice Antonin Scalia broke from the conservative five by creating a "get out of jail free card," or at least a coupon for complicating the work of state and federal prosecutors. In Melendez-Diaz v. Massachusetts (129 S. Ct. 2527 (2009)), the Court declared over a Kennedy dissent (joined by Justices Roberts, Samuel Alito, and Stephen Breyer) that lab reports are "testimonial," so defendants can demand cross-examination of lab techs under the confrontation clause.

Further illustrating how criminal cases can challenge ideological assumptions, Justice Ruth Bader Ginsburg held for a unanimous bench that a passenger in a stopped vehicle may be ordered out for a pat-down if reasonably believed to be armed and dangerous (Arizona v. Johnson, 129 S. Ct. 781 (2009)). But the conservative five also had their way elsewhere. The exclusionary rule was trimmed, with the Court allowing for a negligent error by a police clerk who had wrongly confirmed the existence of an arrest warrant (Herring v. United States, 129 S. Ct. 695 (2009)). The Court determined the mistake did not contaminate the evidence found because the error was "nonrecurring and attenuated" from the kind of conduct the rule is designed to deter. A majority also decided not to extend the Apprendi rule (Apprendi v. New Jersey, 530 466 (2000)) that in order to have a sentence run consecutively rather than concurrently, facts other than a prior conviction must be decided by jurors (Oregon v. Ice, 129 S. Ct. 711 (2009)). And although DNA may be capable of proving innocence, the Court ruled, again by a 5?4 count, there is no constitutional right to gain access to such evidence, at least post-conviction (District Attorney's Office v. Osborne, 129 S. Ct. 2308 (2009)).

Chief Justice Roberts has thus far succeeded in placing the stamp of judicial modesty on the Court that colloquially bears his name. Thus, swapping one stealthy liberal for a more overt one may have no practical impact on case-by-case results in the near future. Then again, perhaps those who elected President Obama have a different conception of change, and Justice Sonia Sotomayor will help define it. "Yes she can!"

Douglas W. Kmiec is the Caruso Family Chair and professor of constitutional law at the Pepperdine University School of Law.

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