May 24, 1999
An Appeals Court That Always Veers to the Right
The Cast of a Conservative Court
By NEIL A. LEWIS
ASHINGTON -- The federal appeals court based in Richmond, Va., has quietly but steadily become the boldest conservative court in the United States in the view of scholars, lawyers and many of its own members who say the court has issued some remarkable rulings and taken a striking tone on several issues.
The court, the 4th U.S. Circuit Court of Appeals, which covers five mid-Atlantic and Southern states, has in recent years evolved into the kind of bench that staunch conservatives had hoped to create at the Supreme Court but never quite achieved despite 12 years of Republican appointments under Presidents Ronald Reagan and George Bush.
The 4th Circuit, which is one level below the Supreme Court, is by far the most restrictive appeals court in the nation in granting new hearings in death-penalty cases, according to several statistical studies. It is highly receptive to efforts by states to restrict abortion, and it has blazed new trails in striking down laws that a majority of its judges say improperly enhance federal power at the expense of the states.
The court stunned both conservative and liberal scholars in February when it cited an obscure 1968 statute in declaring that federal law-enforcement officials need not follow one of the best-known Supreme Court decisions of this century, Miranda vs. Arizona, under which criminal suspects are notified of their legal rights.
"The 4th Circuit has moved forcefully and boldly on some of these issues," said Jesse Choper, who teaches constitutional law at the University of California at Berkeley Law School. "In some cases, they've gone out of their way to reach these decisions."
Perhaps most significant, some of the Republican-appointed judges who hold the majority on the 13-member court proudly assert that they are part of an effort to reshape large areas of federal law and constitutional interpretation.
The divisions on the court have produced sharp debates behind the scenes among judges who present a public face of courtesy and courtliness. But its conservative majority has engaged in an extraordinary degree of maneuvering to ensure that decisions on important cases come out as the majority prefers.
Harvie Wilkinson III, the chief judge of the 4th Circuit, said in an interview that the circuit was "involved in a revival of constitutional limitations that were there all along but have been greatly neglected for a very long time -- the extent of federal power vis-a-vis the states."
Wilkinson said the circuit court's majority was doing its best to follow signals sent by the Supreme Court in recent rulings, particularly those involving new limits on federal power.
He cited several Supreme Court rulings, especially a 1995 case, United States vs. Lopez, in which a 5-4 majority ruled that Congress had overstepped its bounds in 1990 by imposing extra penalties for gun possession near a school. The Supreme Court majority said Congress did not have the authority to regulate such public-safety issues under the Commerce Clause of the Constitution, which allows a federal role in interstate commerce.
The 4th Circuit has taken the principles from that ruling into new areas. It has ruled that some Clean Water Act regulations exceeded Congress' power under the Commerce Clause.
And it has struck down the Drivers' Privacy Protection Act, which prohibits states from selling their rosters of registered drivers for profit. The judges said that the law had "offended our system of dual sovereignty" by telling the states what they could and could not do with their drivers' records. The Supreme Court agreed last week to review that case.
An even more telling test may come later, when the Supreme Court decides whether to hear an appeal of another 4th Circuit ruling earlier this year, which said that the Violence Against Women Act is unconstitutionally based on the Commerce Clause. The case involves a former student at Virginia Polytechnic Institute and State University who tried to use the law to sue two football players who she asserted had raped her.
The 4th Circuit, in a majority opinion by Judge Michael Luttig, offered a ringing defense of states' rights, saying the law "simply cannot be reconciled with the principles of limited federal government upon which this nation is founded."
Judges on both sides of the philosophical divide at the 4th Circuit expressed anxiety and curiosity about how the Supreme Court would treat the case. More than half of the 4th Circuit's active judges were interviewed for this article, although most asked that they not be quoted directly or by name.
In general, the Supreme Court has approved of the rulings from the 4th Circuit. In an address at the 4th Circuit's annual conference last June, Chief Justice William Rehnquist made a point of comparing the court favorably with the 9th U.S. Circuit Court of Appeals, which covers California and several Western states.
The 9th Circuit, also divided along discernible philosophical lines but with a generally liberal cast, at times seems to be in combat with the Supreme Court, which has reversed a higher percentage of that circuit's cases than any other. In contrast, Rehnquist noted, the Supreme Court infrequently finds fault with the rulings of the 4th Circuit.
Conservative Core Wields Its Majority
Out of the 13 active judges in the 4th Circuit, the conservative-minded members like Wilkinson and Luttig, appointed principally by Reagan and Bush, only slightly outnumber the judges who were put on the court by Presidents Jimmy Carter and Bill Clinton.
"There is a core of about seven judges on this court who generally share a common view about many of these issues," said one of the judges in an interview.
The conservative majority on the court has not been reluctant to wield its majority forcefully.
That has resulted in an especially troublesome dispute among some judges on the circuit. On a handful of occasions, judges and former law clerks say, the conservative majority has successfully prevented the release of judicial opinions that displeased them.
The most telling example occurred last July, as described by judges on both sides of the philosophical divide, former judges and law clerks. A federal trial judge ordered the Commonwealth of Virginia not to begin enforcing a law requiring underage women to obtain the consent of one parent before securing an abortion.
The state quickly sought to have the ruling reversed, and applied to Luttig, who agreed to do so.
Several judges confirmed that the abortion rights lawyers then quickly asked for a three-judge panel to reconsider the case. The two judges chosen randomly to make up the panel with Luttig were Judges Clyde Hamilton and Dickson Philips Jr. They wrote an opinion overturning the Luttig order.
An angry Luttig quickly requested that the case be considered by the full court. In the meantime, the chief judge ordered that the ruling by the three-judge panel be withheld from the public. Eventually the full panel unanimously upheld Luttig.
Arthur Hellman, a professor at the University of Pittsburgh Law School who has studied the appeals courts, says the 4th Circuit regularly overrides decisions made by three-judge panels by quickly having the whole court consider the cases, a procedure known as "en banc."
"There is a conservative majority on the full court, and if they see a panel decision they don't like, they just take it en banc and reverse it," he said. "No other circuit enforces majority rule the way the 4th Circuit does. It's gotten to the point that if there is a 2-to-1 liberal panel decision, you can predict with almost perfect certainty that it will go before the full court and be reversed. Liberal panel decisions are not allowed to survive."
Some judges said in interviews that they objected to the frequency with which the conservative majority resorted to the en banc procedure to overturn three-judge panels. "There have been some really nasty fights within the court over that issue," one judge said.
But Judge Emory Widener Jr., who has been on the 4th Circuit since 1972, said in an interview that while the abortion case had produced "many ruffled feathers at the court, I don't think there is any real cause for complaint."
"All the procedures were followed properly," he said.
According to confidential memos circulated among the judges, Luttig has occasionally told his colleagues that he thinks the 4th Circuit is involved in ground-breaking work in its rulings, and he has frequently referred to the court's behavior as "courageous."
A Decided Shift in Philosophical Bent
The circuit, one of 12 regional appeals courts, covers Maryland, Virginia, West Virginia and the Carolinas, and its rulings are theoretically binding in only those states. For years, the 4th Circuit, which was at the heart of the civil rights battle, was considered a fairly liberal court. But by the time Reagan was elected in 1980, many of the judges were nearing retirement.
Both Reagan and Bush allowed committed conservative aides to take over the task of selecting judges. Wilkinson, as a Justice Department official in the Reagan administration, helped pick judges, as did Luttig, who was a Justice Department official in the Bush administration.
Sen. Jesse Helms, R-N.C., also played a role in shaping the court. Helms has blocked President Clinton's efforts to fill two seats historically allocated to North Carolina.
Helms had urged that one of the vacancies be filled with a longtime associate, Terry Boyle, a judge on the district court. After that did not happen, the senator blocked all other candidates, administration and Senate officials have said.
And although the five states covered by the 4th Circuit have a higher percentage of blacks than any other regional circuit, it remains the only federal appeals court never to have had a minority member.
Little Hope for Appeals in Death Penalty Cases
Among its other notable rulings, the 4th Circuit has rejected complaints from gay rights advocates who challenged the Clinton administration's "don't ask, don't tell" policy on homosexuals in the military. The court also ruled that the Food and Drug Administration did not have the power to regulate nicotine as a drug, a victory for tobacco companies.
Most notably, the 4th Circuit is literally death on defendants in death penalty cases. James Liebman of the Columbia University Law School said a study to be published soon shows that the 4th Circuit "by far, gives the least relief of any circuit in the country that has a sizable number of death penalty cases."
Liebman's study shows that in recent years, federal appeals courts nationwide have granted new hearings for death-row inmates in about 40 percent of all habeas corpus cases. The 4th Circuit did so less than 4 percent of the time.
"The conservative outlook of the judges is usually the defining factor in these kinds of case," he said, "and it's especially dramatic in the 4th Circuit."
John Blume of the Cornell University Law School, who represents
death-row prisoners, principally in South Carolina, said state
prosecutors were almost disdainful of district court judges who
grant habeas petitions because they know they will win on appeal to
the 4th Circuit.
"This circuit is the black hole of death penalty cases," he
said. "In the last 26 cases in which the death-sentence petitioner
prevailed at the trial level, the circuit reversed. How can the
district judges be wrong every single time?"