THE HIGH COURT, BETWEEN THE LINES

There are memorable Supreme Court terms and then there are Supreme
Court terms like the one we have just witnessed. No one retired
between the first Monday of October 2004 and this past Monday. There
were no seminal decisions affecting the legal war on terrorism. No
grand constitutional crises were averted. And nothing the justices
decided is likely to fundamentally alter the political, cultural or
religious tensions that now reign.

Every term, just like this term, the court reapportions, in ways
large and small, rights and responsibilities, power and priorities,
rules and standards, liabilities and limitations. Under the
Constitution, the justices more often tinker than they dismantle, and
this past term surely was a term of tinkering.

For example: Today, wine drinkers in one state may buy wine directly
from vineyards in another state. Today, the feds may prosecute users
of medical marijuana whose doctors have prescribed the drug for them
under valid state law. Today, police may use search dogs to inspect
a car even if they have no reasonable suspicion that there are drugs
in that car. Today, it is clear that local officials could, for
economic purposes and if state law permits it, take private property
for just compensation under eminent domain powers.

These are all important rulings; they just aren't game-changers. But
just because this term did not generate the type of momentous ruling
that people will be talking about for decades doesn't mean that there
wasn't a remarkable trend or two that could be discerned from the
scores of judgments rendered by the justices. The trend that
resonates with me is one that surely must concern judicial and
political conservatives alike.

The court's majority this term consistently and sometimes
passionately rose to protect the interests of criminal defendants,
who have been some of the most consistent, if unmourned, legal
"victims" of the so-called Rehnquist Revolution. And it did this to
the visible and eloquent dismay of the three lions of the court's
right: the chief justice and Justices Antonin Scalia and Clarence Thomas.

This niche trend is no small thing. It suggests that a working and
stable majority on the court feels a growing level of discomfort
toward some of the substantive and procedural rollbacks we've seen in
the rights of criminal defendants, especially in capital cases, over
the past generation.

One year ago today, for example, a juvenile who murdered before
reaching age 18 could be given the death penalty. Today, that option
is no longer available. One year ago, California law made it more
difficult for a defense attorney to challenge a prosecutor's choice
to exclude potential jurors. Today, that state law follows the
federal constitutional rule designed to ensure that prosecutors do
not exclude jurors based upon race.

One year ago, Texas prosecutors had gotten away with a shameless
procedure that amounted to racial bias in jury selection. That
procedure is now unconstitutional. One year ago, it was possible for
a state to bar financial assistance for poor people who pleaded
guilty to crimes but who then wanted to appeal their
sentences. Today, that is unconstitutional.

One year ago, a prisoner seeking to raise a constitutional claim
about her parole process had to overcome a nearly insurmountable
appellate hurdle. Today, that hurdle, though still high, is much lower.

Taken together, these rulings say that there's a majority on the
court no longer willing to wait for lower courts or state legislators
or Congress to ensure more fairness and accuracy in capital cases in
particular.

These decisions are some of the practical consequences of the
concerns Justice Sandra Day O'Connor raised in a speech four years
ago when she said: "If statistics are any indication, the system may
well be allowing some innocent defendants to be executed.... Serious
questions are being raised about whether the death penalty is being
fairly administered in this country."

This is not to say that the court suddenly has gone "soft on crime."
There were plenty of rulings this past term that count as "tough on
crime" verdicts. Criminal defendants and convicted felons still have
it much tougher on appeal than in decades past. But the relentless
"refinement" ( read: narrowing ) of procedural rules governing
criminal cases seems to have ebbed. The legacy of the Rehnquist
court is secure. But it is still being shaped -- and more subtlety
than anyone might have expected.

The world the Gang of Nine will return to on the first Monday in
October clearly will be different than the one they leave behind today.

The question, however, is whether the faces on the bench will be
different a few months from now. If so, a new era may begin. If
not, the Rehnquist court will give us an opportunity to see whether
this term's trend continues or just fades away.