The Supreme Court ended its 2001 term with divisiveness, issuing its four final rulings with three cases being decided 5-4 and the fourth at 6-3. In a term filled with many distractions, the greatest of which involved anthrax-related scares that moved hearings and complicated court filings, the disunion of the current Supreme Court is punctuated by the statistic that almost half of the 76 cases decided this term were either 6-3, 5-3 (with one abstention) or 5-4. *

Of the roughly 7,000 petitions that are filed each year requesting review by the Supreme Court, only about 100 make it to oral argument, and a written opinion is delivered in only about 80. This term followed that trend, and confirmed what many Supreme Court enthusiasts believe - that a grant of certiorari signals trouble for the ruling below.

This term, the Supreme Court reversed or vacated the lower court ruling 54 times, it affirmed the lower court ruling 20 times, and reversed or vacated in part and affirmed in part the lower court ruling only twice. Of the 54 reversed or vacated, the renegade Ninth Circuit (read One Nation, Under Siege by Establishment Clause Revisionism ) led the list of statistics on court reversals, with 12 of its cases being reversed and only 4 being affirmed. Interestingly, last term the Ninth Circuit's record was also 12-4 in the reversed/affirmed categories. (Keep up the good work!)

Although the final rulings of this term do not speak well for Court unity, at least one of the cases shook up the typical liberal/conservative camps. In Board of Education v. Earls (No. 01-332), Justice Stephen Breyer deserted his fellow liberals to form the narrow majority with the more conservative Chief Justice Rehnquist and Justices Kennedy, Scalia and Thomas. Justice O'Connor, at times a conservative and normally a key swing vote, joined the rest of the liberals in dissent.

In Board of Education, the Court approved random drug tests for many public high school students, ruling that an individual's right to privacy is outweighed "given the nationwide epidemic of drug use, and the evidence of increased drug use in Tecumseh schools." The ruling, which applies nationwide, allows random tests for any student involved in extracurricular activities.

To the dismay of some Justices and "zero-tolerance" zealots, the decision stopped short of allowing testing of all students, regardless of participation in extra-curricular activities. To read an earlier story referencing this case and the absurdity of suspicionless drug-testing of students participating in such extra-curricular activities as the academic quiz team or choir, click here.

In a case decided in a more familiar split, the Supreme Court held in Hope v. Pelzer (No. 01-309), that prison guards were not entitled to invoke qualified immunity because an Alabama prison practice of handcuffing inmates to a metal pole for hours in the summer heat is unconstitutional. In the opinion by Justice Stevens, in which Justices O'Connor, Kennedy, Souter, Ginsburg and Breyer joined, the Court noted that "[t]he obvious cruelty inherent in this practice should have provided respondents with some notice that their alleged conduct violated Hope's constitutional protection against cruel and unusual punishment. Hope was treated in a way antithetical to human dignity-he was hitched to a post for an extended period of time in a position that was painful, and under circumstances that were both degrading and dangerous."

In a dissent described as "thoughtful" by the majority and joined by Chief Justice Rehnquist and Justice Scalia, Justice Thomas wrote that the "Court today subjects three prison guards to suit based on facts not alleged, law not clearly established, and its own subjective views on appropriate methods of prison discipline. Qualified immunity jurisprudence has been turned on its head." For more details about the background of the case, read "Reading Beyond the Headlines: 'Qualified Immunity' Case Disguised as 'Hitching Post' Case."

The third ruling of the day found Justice O'Connor joining the conservative team of Chief Justice Rehnquist, Justices Kennedy and Thomas to strike down limits on what a judicial candidate can say to voters about his or her views on disputed legal or political issues.

The ruling in Republican Party of Minnesota v. White (No. 01-521) sounds an unqualifed victory for the First Amendment and confirms what the Center argued in its amicus brief filed in a similar judicial speech case. To view a summary of our coverage on this issue and the Center's brief, read "Alabama Supreme Court Rules That Campaign Speech Restrictions on Judicial Candidates Violate the First Amendment."

In the fourth and final ruling announced for the term, the Supreme Court ruled (5-4) that Ohio's school voucher program does not violate the Establishment Clause of the United States Constitution.

In finding that the "program was one of true private choice, with no evidence that the State deliberately skewed incentives toward religious schools," the Court's conservative majority (Rehnquist, Scalia, Kennedy, Thomas and "switch-hitter" O'Connor) handed President Bush a political win for his education reform package that lauds school vouchers.

The Center filed an amicus brief with the Court in this case, arguing that Ohio's school voucher program does not violate the Establishment Clause of the First Amendment because the statewide program allows low-income parents to use publicly financed vouchers as tuition to send their children to private schools, whether they be religious or secular in nature. The Cato Institute, Milton and Rose D. Friedman Foundation and Goldwater Institute joined the Center on the brief. (To read a copy of the brief, click here).

With the heavy lifting of writing opinions complete for this term, the Justices are cleared to start their summer vacations, amid speculation of whether there will be an announcement of retirement by one of the Justices. With the scales tipping against such, we will "go out on a limb" and be the first to predict that the 2002 Term will be another one of close calls.