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Opinion: The Court Begins to Shift
By MARK RAHDERTandLAWRENCE WHITE
 Significant change iscoming to the SupremeCourt of the UnitedStates. There has been noturnover on the courtsince the first half of thefirst term of President BillClinton. For the better  part of a decade four  preponderantly liberal justices havecounterbalanced four  predictably conservative justices, leaving onemember of the court --Justice Sandra DayO'Connor -- as the onlyone whose vote matters inmany cases.Justice O'Connor is thefirst member of the courtin more than a decade toannounce her retirement.In the next two years wemay see another one, two,or possibly three sitting justices leave the court.Justice O'Connor'sannouncement could bethe beginning of a seismicshift in the court's jurisprudence that willhave profoundconsequences for thenation as a whole andhigher education in particular.For all its fractiousness --and this has been, by far,
Friday, July 1, 2005
 
Justice O'Connor, Author of Key Rulings in Higher-Education Cases, AnnouncesRetirement From SupremeCourt The Politics of RetirementFrom the Supreme Court:Reflections of a CourtWatcher 
 
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HEADLINES
 
Justice O'Connor,
author of key rulings in higher-education cases, announcesretirement from SupremeCourt
The politics of retirement
 from the Supreme Court:reflections of a court watcher 
OPINION
 
The court begins to shift
 
Congressman demands
 complete records on climateresearch by 3 scientists whosupport theory of globalwarming
National biosecurity board
 holds first meeting, ponderslimits on research
Academic groups'statement
on rights andfreedoms is criticized as too
Search The SiteNewsOpinion & ForumsCareersSponsored information& solutionsChronicle/Gartner Leadership ForumServices
 
Page 1 of 8The Chronicle: Daily news: 07/01/2005 -- 107/13/2005http://chronicle.com/free/2005/07/2005070110n.htm
 
 the most ideologicallydivided, least collegialgroup of justices in manyyears -- the currentSupreme Court has donewell by colleges anduniversities. Four members of the court,namely Stephen G.Breyer, Ruth Bader Ginsburg, Anthony M.Kennedy, and AntoninScalia, were full-timeuniversity facultymembers before their appointments to the bench. In comparisonwith Supreme Courts of the past, this one hasfirsthand experience in academe and understands whathigher education stands for and how it works.To illustrate, we need look no farther than 2003'slandmark decisions in the two University of Michiganaffirmative-action cases,
Grutter v. Bollinger 
(the law-school case) and
Gratz v. Bollinger 
(the undergraduatecase). Justice O'Connor, writing for a narrow majority in
Grutter,
elevated to the level of binding Supreme Court precedent the late Justice Lewis F. Powell Jr.'s iconicopinion in
 Regents of the University of California v. Bakke
(1978), which in turn incorporated argumentsmade in friend-of-the-court briefs filed in
 Bakke
byHarvard University, Columbia University, and other higher-education institutions.Justice O'Connor endorsed Justice Powell's conclusionthat colleges and universities are constitutionally allowedto take the race of applicants into account in order torealize the educational benefits that flow from having adiverse student body. Justice O'Connor also adoptedJustice Powell's subsidiary but nevertheless importantcorollary: Courts, she held, should give "a degree of deference to a university's academic decisions, withinconstitutionally prescribed limits."
Grutter 
and
Gratz 
are by no means the only recent casesin which colleges and universities have prevailed in theSupreme Court. Three years ago, in a decision involvingGonzaga University, the court adopted a narrowinterpretation of the Family Educational Rights andPrivacy Act and held that Ferpa does not give students
weak 
Education Dept. Web site
 has incorrect information on policy for aid applicants withdrug convictions
Florida A&M
to pay $1.5-million to settle NationalScience Foundationcomplaint
State Digest:
a roundup of this week's news from thestates
This week 
at the Al-Ariantrial: Prosecutors are allowedto use computer data asevidence
 
Page 2 of 8The Chronicle: Daily news: 07/01/2005 -- 107/13/2005http://chronicle.com/free/2005/07/2005070110n.htm
 
the right to sue colleges and universities directly.Twice in the last four years, the court has sided withstate universities and dismissed employees' claims for money damages on the ground that the universities, asagencies of state government, had not waived their immunity from suit under the 11th Amendment to theConstitution.And the court in 2000 upheld the system used by theUniversity of Wisconsin to collect mandatory studentfees to support a wide range of activities on the campus.That opinion, written by Justice Kennedy, showedsolicitude for the modern university as an institutiondedicated to "the free and open exchange of ideas by,and among, its students."Such decisions are the work of nine justices who haveserved together longer than the members of almost anyother Supreme Court in American history. Today's courthas had three unique characteristics that have defined itin political terms.First, it has been unusually experienced. The current justices have served for an average of 19 years each, anunusually long time. Even before they reached theSupreme Court, all but Chief Justice William H.Rehnquist had served as judges on the lower federalcourts or state trial and appellate courts. In fact, with theexception of Justice Clarence Thomas, every justice hasworn judicial robes for 20 years or more.Second, it has been unusually stable. Today's justiceshave served together for 11 years without a change in personnel. By way of comparison, from 1930 to 1990, presidents appointed 33 new justices, an average of oneappointee every 22 months.Third, it has been unusually -- one could even saystartlingly -- ideologically polarized. On the left, jurisprudentially speaking, four justices form the court'smore or less dependably liberal bloc: Justices Breyer,Ginsburg, David H. Souter, and John Paul Stevens. Onthe right have been Justices Kennedy, Rehnquist, Scalia,and Thomas.That left Justice O'Connor in the middle; her vote was sofrequently determinative of the outcome in specific casesthat, as a practical matter, she almost never dissented inclose cases. She was assiduously cultivated by advocatesPage 3 of 8The Chronicle: Daily news: 07/01/2005 -- 107/13/2005http://chronicle.com/free/2005/07/2005070110n.htm
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