As chief justice of the United States, William H. Rehnquist had led the Supreme Court, and therefore the nation, down a jurisprudential path of states’ rights advocacy. Specifically, in a series of 5–4 rulings questioning state immunity from litigation, he argued for the majorities that federal law does not necessarily penetrate the borders of the states and control public policy. On May 27, 2003, however, the chief justice broke ranks with three of his conservative colleagues and ruled that states can be sued for failing to provide time off for employees experiencing family emergencies. In Nevada Department of Human Resources v. Hibbs, Rehnquist explained that, unlike previous cases involving broad claims relating to employee disabilities, the Family and Medical Leave Act specifically and successfully sought to remedy pervasive legal, political, and social assumptions about “women’s work” and the role of gender in family-care matters. The state’s failure to extend unpaid leave privileges to women and men equally constituted a denial of equal protection of law and therefore erased the state’s 11th Amendment claim of immunity from suit.
Although the Nevada case addressed a core issue in federalism jurisprudence, it was the element of discrimination that decided the case, and in this it comported with a larger civil liberties and civil rights agenda. Just as the court exercised judicial power to establish legal equality according to gender, in a landmark case, Lawrence v. Texas, it employed the due process clause of the 14th Amendment to protect sexual orientation. Despite Justice Antonin Scalia’s scathing dissenting opinion claiming that the court had “signed on to the so-called homosexual agenda” and “taken sides in the culture war,” Justice Anthony Kennedy wrote for the majority that gays and lesbians are entitled to the same right to privacy as heterosexuals. In declaring that “the state cannot demean their existence or control their destiny by making their private sexual conduct a crime,” the court’s ruling invalidated sodomy laws in 13 states. Moreover, in the Lawrence decision, for the first time in its history, the court invoked a decision of the European Court of Human Rights. Kennedy’s reference to the West’s commitment to cultural tolerance prompted Scalia to read from the bench his dissent in which he characterized the court’s ruling as “dangerous” to the American legal tradition.
During the final week of the term, in Gatz v. Bollinger and Grutter v. Bollinger, the court addressed another salient civil rights issue, affirmative action. The two cases addressed the University of Michigan’s policies for undergraduate and law-school admissions, respectively. Although the court invalidated the undergraduate admissions policy because the university’s system of awarding points on the basis of race and ethnicity too closely approximated the quotas the court had declared unconstitutional 25 years earlier in Bakke v. Board of Regents, it upheld the law school’s “narrowly tailored” and “holistic” use of race in admissions decisions as a necessary step in furtherance of the compelling interest in establishing racial diversity and educational opportunity. In a manner consistent with her moderate positions on abortion and race-conscious districting, Justice Sandra Day O’Connor championed tightly fashioned laws designed to protect individual rights as virtual moral imperatives.
The matter of race was central to two other cases in the 2003 term, Georgia v. Ashcroft and Virginia v. Black. In the former, O’Connor, whose pivotal vote created a majority in 12 of the 14 cases decided by 5–4 margins in the current term, ruled that racial redistricting designed to enhance African American voting rights through plans that divide black voters among a number of districts rather than being consolidated into fewer, densely populated districts, are constitutionally permissible. In the latter case the court addressed the delicate relationship between race relations, criminal law, and free speech. By a vote of 6–3, the court upheld a Virginia law criminalizing cross burning as a form of intimidation. Although the court had previously ruled in cases such as Capital Square Review and Advisory Board v. Pinette (1995) that the Ku Klux Klan may participate in seasonal displays involving the cross and in R.A.V. v. St. Paul (1992) that race-based fighting words may not be treated differently from other fighting words, the court here drew a line between symbolic speech and acts of intimidation. Justice Clarence Thomas, who ordinarily remained silent during oral arguments, argued that a burning cross represents nothing but a “reign of terror” and, as an act of racial intimidation, ought not to be entitled to constitutional protection.
Falling more squarely into the realm of criminal law, the court decided a series of cases that spanned the philosophical continuum. Upholding the rights of the criminally accused, the court decided two death-penalty cases; one, Miller-El v. Cockrell, required a federal appeals court to grant habeas corpus to a Texas death-row inmate whose sentence allegedly resulted from a racially biased jury-selection process, and the other, Wiggins v. Smith, resulted in the court’s overturning the death sentence on Kevin Wiggins on the grounds of ineffective legal counsel. Less sympathetic to the criminally accused were decisions in two California cases challenging the state’s “three-strikes” rule. In Ewing v. California and Lockyer v. Andrade, O’Connor once again played a pivotal role, writing 5–4-majority decisions that rejected claims that otherwise-minor third offenses resulting in long mandatory sentences constitute cruel and unusual punishment. The court also rejected a pair of constitutional challenges to “Megan’s Law,” named for the child victim of sexualized violence. Megan’s Law enabled the creation of a sex-offender notification and registration program that had been adopted in every state. Turning away claims of a denial of due process, Rehnquist wrote for the majority in Connecticut v. Doe that the state did not have to conduct hearings prior to posting photographs and information about offenders on the state’s Internet registry. A related case, Smith v. Doe, involved Alaska’s attempt to add to its registry the names of sex offenders convicted before the law was enacted. Arguing that the registry does not impose any punishment on the offender, Kennedy concluded that the ex post facto clause of the Constitution—which prohibits retroactive punishment—is inapplicable to nonpunitive cases.
Among a number of business law cases decided during the 2002–03 Supreme Court term, three stood out as noteworthy: State Farm Mutual Automobile Insurance Co. v. Campbell, Moseley v. V Secret Catalogue, Inc., and Eldred v. Ashcroft. In the State Farm case, the court decided 6–3 to set new punitive-damages guidelines, scrapping the standing 145:1 ratio of punitive to compensatory damages in favour of an unspecified ratio smaller than 9:1; a settlement above this would almost certainly be regarded by the court as arbitrary and unreasonable. The V Secret and Eldred cases both pertained to intellectual-property rights. In the former case the court ruled unanimously that economic harm does not have to be demonstrated to prevail in cases under the Federal Trademark Dilution Act. Noneconomic harm, such as discrediting a corporate name or deliberately confusing its identity, are enough to carry forward a successful case under the law. In the latter case the court ruled 7–2 that a congressional act passed in 1998, extending existing copyrights by 20 years, is constitutional. In an opinion that many thought demonstrated a pro-big-business bias, the court noted that the Copyright Term Extension Act is a constitutionally permissible exercise of congressional authority. The validity of the act was expected to prove lucrative to major copyright holders in general and the entertainment industry in particular.
On December 10 in McConnell v. Federal Election Commission, a divided Supreme Court upheld (5–4) key provisions of the McCain-Feingold campaign finance reform legislation that had passed Congress in 2002. The court ruled that the law’s ban on “soft money” (campaign donations not subject to federal regulations) and restrictions on advertisements by interest groups near election day did not violate the First Amendment protection of freedom of speech.
Despite the significance of the decisions reached by the Supreme Court during the term, it was a lower court ruling that proved most salient in the court of public opinion. In Elk Grove Unified School District v. Newdow, the 9th Circuit Court of Appeals declared unconstitutional the recitation of the Pledge of Allegiance in public schools. On October 14 the U.S. Supreme Court agreed to review the ruling during its 2003–04 term. The central question was whether the phrase “one nation under God” constituted a violation of the Constitution’s religious freedom clauses.