End of Term

It was supposed to be a morning of high drama at the U.S. Supreme Court. The justices handed down the six remaining cases of the term on Monday--including several controversial decisions on the Ten Commandments and Internet file-sharing. But despite widespread speculation that ailing Chief Justice William Rehnquist might use the moment to announce his retirement, the nine justices filed out of the courtroom without dropping the slightest hint of their future plans.

That doesn't necessarily mean that no one's leaving the court, however. In recent history, only one justice has indicated his retirement in the courtroom--Rehnquist announced the departure of Lewis Powell from the bench in 1987. (Powell then held a noon press conference.) Others have made the news known through a discreet letter to the White House or statement released by the press office--messages that could certainly be delivered later this week or even later in the summer. (In 1990, William Brennan released news of his departure in a statement issued at 7:40 p.m. on a Friday night in July.)

Rehnquist certainly did not seem in peak condition Monday morning. Suffering from thyroid cancer and using a device that allows him to talk despite a tracheotomy, Rehnquist, 80, struggled to speak throughout the session. His voice sounded hoarse, mechanical and at times barely audible--a departure even from the session last Thursday, when he sounded stronger. He left the bench once for several minutes and, later in the hour, emitted raspy sounds while reaching for facial tissues, apparently to clear his breathing tube. Rehnquist left most of the talking to other justices assigned to deliver various opinions. But when announcing the final case of the term fell to him, he dispensed with the usual lengthy reading of a summary of the opinion and just outlined the court's ruling in brief. Other reports have suggested that 75-year-old Justice Sandra Day O'Connor--whose husband is ill--was also planning to depart. But O'Connor similarly offered no clues about her future.

With no vacancy to focus on, reporters and the protesters gathered on the court's marble steps turned to the day's decisions. The court split 5-4 in different directions over two cases involving public display of the Ten Commandments. In McCreary County, Kentucky et al v. American Civil Liberties Union of Kentucky, Justice David Souter wrote the majority opinion declaring that two framed copies of the commandments in Kentucky courthouses were unconstitutional. "Neutrality has long been a touchstone of our cases," Souter said. Though the commandments are "primarily religious," he explained, the context in which they're displayed does matter. The court determined that the two Kentucky counties had first intended to display the commandments to send a religious message. Later the counties twice tried to modify the displays to meet Constitutional muster, but the court took the original intent into account, Souter explained. He distinguished the Kentucky displays from others like one depicting Moses with the tablets as one in a parade of lawgivers shown in a frieze on the court's own south wall. Souter was joined by Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and--the swing voter--O'Connor.

Justice Antonin Scalia read part of a strongly worded dissent from the bench, arguing that the decision "ratchets up this court's hostility to religion" and noting that "there is a distinction between preaching religion and acknowledging religion's role in our history." Scalia--joined in part by Justices Rehnquist and Clarence Thomas--cited historical examples of the Founding Fathers' use of religious language and prayer. He accused the majority of applying the idea of neutrality inconsistently and scoffed that there was nothing behind their decision "except the court's own say so," adding, "It is moreover a thoroughly discredited say so."

On a second Ten Commandments case, the court also ruled 5-4 but in the other direction. In Van Orden v. Perry, a plurality of Rehnquist, Thomas, Anthony Kennedy and Scalia agreed that a monument displaying the Ten Commandments on the grounds of the Texas state capitol did not violate the separation of church and state. They were joined by Justice Breyer, who came to his own narrower conclusion. Breyer--normally a liberal who this time gave the conservatives their fifth vote--wrote that "the Court has found no single mechanical formula that can accurately draw the constitutional line in every case." He suggested that "legal judgment" was needed in this case and found that the Texas tablets communicated a secular as well as a religious message. Moreover, Souter pointed out, the Texas monument had stood for over 40 years with no objections. His opinion included an unusual appendix. One page was a photo of the Texas capitol grounds with a small red arrow pointing to the Ten Commandments monument amid other signs and monuments. Another page showed a guide to the grounds that also pinpointed other secular monuments. Justice Stevens, who penned a dissent in the case, attached a close-up photo of the monument where the religious text of the Ten Commandments could be clearly seen. The nine justices managed to issue seven separate opinions in the case, prompting a gravelly-voiced Rehnquist to quip, "I didn't know we had that many people on our court."

The split rulings left activists on both sides alternately pleased and confused. Those who favored strict separation of church and state hailed the Kentucky ruling. "Our Constitution's ban on government entanglement with religion is good for both government and religion. It keeps religion free, and it allows government to represent us all," ACLU legal director Steven Shapiro said in a statement. Though he disagreed with the Texas decision, Shapiro pointed out that Breyer's narrower ruling meant there was no real majority for a broader view. On the other hand, Jay Sekulow, chief counsel of the conservative American Center for Law and Justice, praised the Texas ruling but noted in a statement that the Kentucky decision was "likely to create more questions and confusion in this area of church/state law." Edwin Chemerinsky, the Duke law professor who argued unsuccessfully on behalf of Van Orden--a homeless Texas lawyer and self-described "religious pluralist" who objected to the Ten Commandments on public property--also noted the issue's murky future. "The Court clearly held that the Ten Commandments are a religious symbol, but whether a particular Ten Commandments display is constitutional will depend on its history, purpose, and context," he said in a statement.

Protesters on both sides of the debate gathered in the hot, humid air on the court's front sidewalk after the morning session. The Rev. Rob Schenck, president of the National Clergy Council, announced that he had mobilized 23,000 activists who would make replicas of the Supreme Court's own Ten Commandments frieze and display them in courthouses across the country. "Perhaps we have hit rock bottom and there is no place to go but up," he said. Then he began reading the commandments from an open bible. Atheists and other religious leaders praised the decision. And Tony Perkins, president of the socially conservative Family Research Council, used the moment to point out the high stakes a court vacancy could have. "We're very concerned about this court," he told reporters. "It underscores the importance of the makeup of this court."

In another major ruling seen as a victory for the entertainment industry, the court held unanimously that internet file-sharing services can be held liable for music and movie piracy. In MGM v. Grokster, which had reached the Supreme Court on an expedited basis, the justices sent the case back to the lower courts. But writing for the majority, Justice Souter ruled that Grokster and the other company in the suit, StreamCast, had taken "active steps" to encourage copyright infringement. In another Internet-related case, National Cable & Telecommunications Association v. Brand X Internet Services, the court agreed with a decision by the Federal Communications Commission that the providers of cable broadband Internet service don't have to provide access to other Internet service providers.

Two criminal cases finished up the term. In Castle Rock v. Gonzales, the court ruled 7-2 that police cannot be sued for failing to enforce restraining orders. Advocates for victims of domestic violence called the ruling extremely damaging and said they feared it could discourage women from seeking legal protection. "Restraining orders aren't worth the paper they are written on when police do not enforce them," Esta Soler, president of Family Violence Prevention Fund, said in a statement. Richard W. Smith, an attorney at McDermott Will & Emery who filed an amicus brief on behalf of several law enforcement groups that believe police should be held liable when they fail to enforce protective orders, believes the ruling could encourage states to beef up their laws. "The states have no choice but to stand up and take protection seriously," Smith told NEWSWEEK. Finally, in another 5-4 case, Bell v. Thompson, the court ruled that a lower court was wrong to consider new evidence that gave a death row inmate a second chance.

The court today also declined to take up the case of New York Times reporter Judith Miller and Time magazine correspondent Matt Cooper, letting stand a lower-court ruling that the two journalists should be jailed for refusing to reveal confidential sources to a grand jury. The grand jury was investigating who leaked the name of Valerie Plame, a covert CIA operative, to the media. Though neither Miller nor Cooper was accused of the original leak, both face fines and up to 18 months in prison for contempt of court. Time issued a statement Monday saying it would seek a prompt hearing from the federal district judge who initially held the reporters in contempt. The magazine said it believed that the special counsel Patrick Fitzgerald's investigation had changed and that he may have determined that disclosure of the operative's name did not violate the law. If that's the case, the reason Fitzgerald may be pursuing Miller and Cooper "may be solely related to an investigation into whether witnesses made false statements during the course of his investigation into this non-crime," Time said in a statement. Fitzgerald issued a statement of his own noting that with all appeals exhausted, "we look forward to resuming our progress in this investigation and bringing it to a prompt conclusion." Without further intervention, the two reporters could be sentenced as soon as this week.

Even if today's rulings lacked the drama of a resignation, they were a smorgasbord for court watchers. If none of the justices leaves this summer, the waiting and watching will begin anew the first Monday in October.

End of Term | News