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
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
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. …