The Supreme Court session that ended in late June featured cases concerning eminent domain, the death penalty for juveniles, and the medical use of marijuana. At an AEI panel discussion on June 29, legal scholars assessed the decisions that the Court handed down, focusing especially on issues related to federalism. The panelists also discussed the future composition of the Court in the wake of Justice Sandra Day O’Connor’s retirement.

AEI’s Michael S. Greve criticized the last term as exemplifying a broad shift in the institutional protection of citizens. He identified the constitutional arrangement as structuring government in order to protect the public from government overreach through limitations like federalism and the separation of powers, with rights as a component of a more general framework laid out by the Constitution. The modern practice, as described by Greve, treats individual rights as the only “bulwark against a government that is otherwise omnipotent.” Greve blamed the demise of rigorous application of structural constitutional protections in part for this shift, which he said makes the Court appear more activist and constituency-oriented than it would be according to the constitutional structure.

Robert Nagel of the University of Colorado Law School considered the dissenting opinions in certain controversial cases decided this year. In Kelo v. New London, the majority favored the principle of “eminent domain,” which allows governments to purchase private land for the sake of public benefit, over private property rights. Justice O’Connor declared that the majority ruling eviscerates all limits on the idea of public land use. Likewise, Nagel noted that Justice Clarence Thomas dissented on the grounds that the ruling replaced the “constitutional text” of public use with “an entirely different concept of public purpose or benefit.” The minority therefore, as characterized by Nagel, effectively accused the majority of “elevating its own decisions and its own doctrines, in its own cases, over the authoritative document that is supposedly being interpreted.”

The decision in Roper v. Simmons, in which the majority excluded juveniles from facing the death penalty, prompted Nagel to claim that “you would be hard-pressed to find any plainer example . . . of the Court substituting its own authority for the authority of the Constitution itself.” He agreed with Justice O’Connor’s argument that the Court was wrong to jump from finding that juveniles are less mature and therefore less culpable to the point that their actions can never merit the death penalty.
 
Nagel concluded that the Supreme Court is “increasingly separating itself from the authority of the Constitution, and from . . . practices that reflect the meaning of the document.”
 
Jonathan H. Adler of Case Western Law School examined how the Court seemed to be moving toward setting a national standard in cases involving certain social issues, even overriding states on these matters. In the two cases involving the display of the Ten Commandments, the justices seemed to be settling on how many other monuments relating to historical matters must sit next to the Ten Commandments display and for how many years in order for the display to be considered lawful.
 
Neil Siegel of Duke Law School examined Raich v. Gonzales, in which the Court ruled that the Commerce Clause grants Congress the authority to prohibit the local cultivation and use of marijuana, even for medical purposes currently allowed in some states. Although Adler argued that the ruling would be on an as-applied basis rather than a blanket statement, Siegel questioned how states are “seriously supposed to enforce the federal drug laws when we have constantly got to be defending this kind of thing.”

Siegel also considered the current ideological makeup of the Court. He noted a decline in
solidarity among the Court’s conservative majority--Rehnquist, O’Connor, Antonin Scalia, Anthony M. Kennedy, and Thomas--in the last term, to which National Public Radio’s Nina Totenberg added that the “center of the Court has clearly moved dramatically to the right.” Siegel described Justice Thomas as “making a real effort to be a principled originalist,” and Totenberg called Justice John Paul Stevens a “powerhouse” and particularly influential in the Kelo and Raich cases.

Responding to a question at the event (held prior to the announcement of the president’s nominee), Totenberg predicted that Judge John G. Roberts Jr. would likely win Senate confirmation. Following the nomination, AEI’s John Yoo told the Washington Post that Roberts takes a traditional approach to the law and in many ways “represents the Washington establishment. These Washington establishment people are not revolutionaries, and they’re not out to shake up constitutional law. They might make course corrections, but they’re not trying to sail the boat to a different port."