Two Kindred Courts Break Legal Ground ; Echoing High Court Shifts, One Appeals Panel Is Nudging the Law to the Right

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The federal appeals court in Richmond, Va., is emerging as a cutting-edge testing ground for conservative legal theories that only a few years ago seemed radical and almost unthinkable to liberal legal analysts.

Today, many of them are the law of the land. Instead of being overturned, these legal theories - involving limits to federal power and defendants' rights - are being embraced and upheld by a slim majority of conservative justices on the US Supreme Court.

"There is almost a dialogue in which the two courts are engaging one another," says Rodney Smolla, a law professor at the University of Richmond. "More than any other court of appeals in the country, it has shown some intellectual daring and a willingness to break new ground,... and that tends to get noticed."

Some of the most important cases of the current Supreme Court term illustrate the trend. The US Court of Appeals for the Fourth Circuit struck down the Violence Against Women Act because it exceeded congressional power under the US Constitution. It also ruled that the Food and Drug Administration had never been granted the authority to regulate tobacco as a drug. Both highly controversial decisions were upheld earlier this year by the Supreme Court.

And in one of the most significant cases in decades, the high court is considering whether the appeals court judges in Richmond got it right when they ruled that the landmark 1966 Miranda decision does not require police to advise arrestees of their rights prior to an interrogation. The Supreme Court's decision in that case is expected within the next two weeks.

"The Fourth Circuit is the closest in philosophy to the Supreme Court majority on these questions," says Michael Farris of the Center for the Original Intent of the Constitution in Purcellville, Va. "They are feeding [the high court] interesting cases because they are willing to take seriously what the Supreme Court is saying."

Of course, not every Fourth Circuit decision is upheld by the high court. Supreme Court justices in January unanimously overturned a Fourth Circuit decision that had struck down a federal privacy law prohibiting state governments from selling personal information on driver's licenses. The high court also overturned another Fourth Circuit decision 7-to-2 that made it harder for citizens to sue polluters to force them to comply with environmental permits.

The court to watch

Despite such setbacks, analysts say the Fourth Circuit is nonetheless the appeals court to watch for potential major Supreme Court cases. For example, earlier this month the circuit court heard arguments to end court-ordered busing in Charlotte, N.C. It also last week issued a decision regarding the application of the federal Endangered Species Act on private land. The Fourth Circuit upheld the act, despite a challenge that Congress has no authority to regulate private property.

The same Fourth Circuit judge who wrote the decision overturning the Violence Against Women Act wrote a blistering dissent in the case which will likely attract the attention of the conservative majority on the Supreme Court.

The Fourth Circuit handles appeals in the five-state region of Maryland, Virginia, West Virginia, North Carolina, and South Carolina. Currently, 11 judges, nine men and two women, sit on the appeals court, with four vacancies. A black judge has never served on the Fourth Circuit. …