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Friday, July 1, 2005

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Opinion: The Court Begins to Shift
Go By MARK RAHDERT and LAWRENCE WHITE

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| Back issues Significant change is coming to the Supreme Justice O'Connor, Author of Key Rulings in HigherCourt of the United Education Cases, Announces States. There has been no Retirement From Supreme turnover on the court Court since the first half of the first term of President Bill The Politics of Retirement From the Supreme Court: Clinton. For the better Reflections of a Court part of a decade four Watcher preponderantly liberal justices have counterbalanced four Printer E-mail predictably conservative article friendly justices, leaving one Order member of the court -Subscribe reprints Justice Sandra Day O'Connor -- as the only one whose vote matters in HEADLINES many cases. Justice O'Connor is the first member of the court in more than a decade to announce her retirement. In the next two years we may see another one, two, or possibly three sitting justices leave the court. Justice O'Connor's announcement could be the beginning of a seismic shift in the court's jurisprudence that will have profound consequences for the nation as a whole and higher education in particular. For all its fractiousness -and this has been, by far,
Justice O'Connor, author of key rulings in highereducation cases, announces retirement from Supreme Court The politics of retirement from the Supreme Court: reflections of a court watcher
OPINION

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The court begins to shift Congressman demands complete records on climate research by 3 scientists who support theory of global warming National biosecurity board holds first meeting, ponders limits on research Academic groups' statement on rights and freedoms is criticized as too

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weak the most ideologically divided, least collegial Education Dept. Web site group of justices in many has incorrect information on years -- the current policy for aid applicants with drug convictions Supreme Court has done well by colleges and Florida A&M to pay $1.5universities. Four million to settle National members of the court, Science Foundation namely Stephen G. complaint Breyer, Ruth Bader State Digest: a roundup of Ginsburg, Anthony M. this week's news from the Kennedy, and Antonin states Scalia, were full-time university faculty This week at the Al-Arian trial: Prosecutors are allowed members before their to use computer data as appointments to the evidence bench. In comparison with Supreme Courts of the past, this one has firsthand experience in academe and understands what higher education stands for and how it works.

To illustrate, we need look no farther than 2003's landmark decisions in the two University of Michigan affirmative-action cases, Grutter v. Bollinger (the lawschool case) and Gratz v. Bollinger (the undergraduate case). 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 iconic opinion in Regents of the University of California v. Bakke (1978), which in turn incorporated arguments made in friend-of-the-court briefs filed in Bakke by Harvard University, Columbia University, and other higher-education institutions. Justice O'Connor endorsed Justice Powell's conclusion that colleges and universities are constitutionally allowed to take the race of applicants into account in order to realize the educational benefits that flow from having a diverse student body. Justice O'Connor also adopted Justice Powell's subsidiary but nevertheless important corollary: Courts, she held, should give "a degree of deference to a university's academic decisions, within constitutionally prescribed limits." Grutter and Gratz are by no means the only recent cases in which colleges and universities have prevailed in the Supreme Court. Three years ago, in a decision involving Gonzaga University, the court adopted a narrow interpretation of the Family Educational Rights and Privacy Act and held that Ferpa does not give students

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the right to sue colleges and universities directly. Twice in the last four years, the court has sided with state universities and dismissed employees' claims for money damages on the ground that the universities, as agencies of state government, had not waived their immunity from suit under the 11th Amendment to the Constitution. And the court in 2000 upheld the system used by the University of Wisconsin to collect mandatory student fees to support a wide range of activities on the campus. That opinion, written by Justice Kennedy, showed solicitude for the modern university as an institution dedicated to "the free and open exchange of ideas by, and among, its students." Such decisions are the work of nine justices who have served together longer than the members of almost any other Supreme Court in American history. Today's court has had three unique characteristics that have defined it in political terms. First, it has been unusually experienced. The current justices have served for an average of 19 years each, an unusually long time. Even before they reached the Supreme Court, all but Chief Justice William H. Rehnquist had served as judges on the lower federal courts or state trial and appellate courts. In fact, with the exception of Justice Clarence Thomas, every justice has worn judicial robes for 20 years or more. Second, it has been unusually stable. Today's justices have 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 one appointee every 22 months. Third, it has been unusually -- one could even say startlingly -- ideologically polarized. On the left, jurisprudentially speaking, four justices form the court's more or less dependably liberal bloc: Justices Breyer, Ginsburg, David H. Souter, and John Paul Stevens. On the right have been Justices Kennedy, Rehnquist, Scalia, and Thomas. That left Justice O'Connor in the middle; her vote was so frequently determinative of the outcome in specific cases that, as a practical matter, she almost never dissented in close cases. She was assiduously cultivated by advocates

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who argued before the court and the justices themselves, who reasoned (often with justification) that she could provide the crucial fifth vote needed to cement a court majority. With tongue in cheek, the Washington lawyer John Elwood once suggested in the satirical legal journal Green Bag that expenses at the Supreme Court "could be trimmed 88 percent if the redundant justices were simply eliminated, leaving Justice O'Connor to decide the cases on her own." Justice O'Connor, at 75, may not be the only justice ready to retire. Chief Justice Rehnquist, 80, has served longer than any other current justice and indeed is one of the longest-serving justices in history. Recovering from thyroid cancer that required him to miss several months of the just-completed term, he may also be ready to leave next year, if not this. Other potential candidates to step down include Justice Stevens, 85, and Justice Ginsburg, 72, who spent much of 1999 and 2000 undergoing postoperative treatment for colorectal cancer, although she seems to have made a good recovery. Early speculation as to whom President Bush might nominate to fill a court vacancy has focused on the same short list of potential candidates, most of whom are conservative federal appellate judges appointed to the bench by President Ronald Reagan or President George H.W. Bush. If the president wishes to appoint a woman, Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit may be the front-runner. The list also includes J. Michael Luttig and J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals, and Samuel A. Alito Jr. of the Third Circuit Court of Appeals. A relative newcomer to the list is Michael W. McConnell, who was appointed to the 10th Circuit Court of Appeals during President Bush's first term. Many close observers predict that President Bush's first appointment to the court will be Hispanic. Until recently, Alberto R. Gonzales, the U.S. attorney general and a former Texas Supreme Court justice, was assumed to have the inside track. But Mr. Gonzales's stock fell after the Supreme Court's decisions two years ago in the Michigan affirmative-action cases; ardent conservatives criticized him for not taking a more intractable position against affirmative action in the administration's friendof-the-court brief. He is also tarnished by his role in developing the administration's position on the detention and interrogation of "enemy combatants." Now the first name uttered by knowledgeable

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speculators is that of the Texas-based federal appellate judge Emilio M. Garza, who was appointed to the trial court by President Reagan and elevated to a seat on the Fifth Circuit Court of Appeals by President Bush's father. Whoever is selected to succeed Justice O'Connor, one thing is certain: The nomination will unleash a partisan confirmation fight of unprecedented proportions. Because Justice O'Connor played such a visible role as the court's centrist swing vote, the confirmation battle over her successor will resemble nothing as much as a World Wrestling Entertainment SmackDown. The high stakes are amplified by the narrowness of the Republicans' hold on the Senate, the willingness of emboldened Senate Democrats to use parliamentary and delaying tactics like the filibuster against conservative nominees, and the determination of Senate Republicans to change the rules if necessary. Supreme Court nominations are acted upon in the first instance by the Senate Judiciary Committee, which is bitterly divided along partisan and ideological lines. As we saw during the bruising hearings on John Ashcroft's and Alberto Gonzales's nominations to be attorney general and subsequent filibuster fights over nominees for lower-court vacancies, the committee is not afraid to cast partisan votes and does not shy away from bareknuckled politics in the consideration of presidential nominees to the federal judiciary. The close split among the justices suggests that the appointment of even one new member could make a portentous difference in the balance of political and philosophical power on the court. Some of the most provocative issues on the social agenda, including those that directly affect higher education -- affirmative action, sovereign immunity, gay-and-lesbian rights -- were all the subjects of 5-to-4 decisions during the last three Supreme Court terms. The addition of Justice O'Connor's replacement could create a new majority on either the right or the left of the court, and two or more new justices would almost certainly rearrange the existing voting blocs. Justice O'Connor's retirement should induce particular anxiety in academe. Her opinion for the court in Grutter angered and energized die-hard opponents of race-based affirmative action. With her retirement, the Republican right will undoubtedly push to replace her with a litmustested conservative who will dependably vote with the

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court's conservative bloc in future affirmative-action cases. And the Democratic left will just as certainly oppose the nomination of a declared affirmative-action foe. For a decade or even longer, Justice O'Connor has forged slender majorities in cases recognizing the uniqueness of the nation's colleges and universities. Her departure from the court could leave higher-education law untethered and more at the mercy than ever of the strong political cross-currents that have roiled the Supreme Court for much of the Rehnquist era. Mark Rahdert is a professor of law at Temple University. Lawrence White is chief legal counsel of the Pennsylvania Department of Education.

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