For several years it has been considered a given among many lawyers in Maryland and Virginia. If your client is a worker complaining of on-the-job discrimination, a college with an affirmative action program or a death row inmate seeking a new trial, you'll probably lose in federal appeals court.
The U.S. Court of Appeals for the 4th Circuit--the court whose word is law in the Washington suburbs--may be the most conservative in the country, lawyers say.
But recently the Richmond-based court has done more than enthusiastically apply the U.S. Supreme Court's most conservative decisions. The 4th Circuit also is trying to lead the way, issuing groundbreaking rulings in the hope that the Supreme Court will ratify them as the law of the land. Most prominently, a 4th Circuit panel ruled that federal agents need not warn suspects of their right to silence and legal counsel, a requirement that began with the landmark 1966 Miranda case.
The U.S. Supreme Court this term will review not only the new Miranda ruling but also 4th Circuit decisions that made it harder for citizens to sue polluters, that found the Food and Drug Administration cannot regulate tobacco and that struck down a law allowing domestic violence victims to file federal lawsuits against their attackers.
If, as many expect, the Supreme Court upholds these decisions, the Richmond court will be inspired to issue more precedent-setting rulings, legal scholars say, a move that will further increase its impact on Maryland and Virginia residents, businesses and local governments.
"The Supreme Court and the 4th Circuit are working together to move the country in a more conservative direction," said Yale University law professor Akhil R. Amar. "The 4th Circuit [is] an assistant teeing up issues and scouting new enemies to conquer."
The 4th Circuit's rulings cover Virginia, Maryland, West Virginia and the Carolinas, and they are usually the final word. The appeals court decided 5,233 cases in the 1998 term, and the Supreme Court reviewed only a handful.
The 4th Circuit was considered relatively liberal during the civil rights era.
But a slew of retirements made room for the current group of six Republican appointees, who have embraced the Supreme Court's recent decisions limiting federal power and criminal defendants' rights.
The five Clinton and Carter appointees on the court are moderate to conservative Democrats who sometimes join the court's majority. There are four open seats, but the U.S. Senate is unlikely to confirm many new judges next year before the presidential election.
What makes the 4th Circuit different from other appeals courts, scholars say, is how far it has extended the Supreme Court's line of logic to new areas.
When the Supreme Court invalidated the Brady Act provision that required local sheriffs to check gun buyers' backgrounds, the Richmond court took that decision's guiding principle--the federal government should not intrude on state activities--and used it to strike down a popular law that prevented states from selling personal information contained in motor vehicle records.
"They're putting the Supreme Court to the test, [saying], 'This is what you said. If you really meant it, this is the implication,' " said University of California at Berkeley law professor John C. Yoo. "They have predicted that the Supreme Court's direction is going to be more conservative, and so far they have been right."
Even the 4th Circuit's boldest decisions draw heavily on recent Supreme Court opinions. Take U.S. v. Dickerson, the current case involving suspects' Miranda rights. Though many in the legal world were shocked when the 4th Circuit ruled that an obscure 1968 federal law had overturned the 1966 Miranda decision, Supreme Court Justice Antonin Scalia had complained in a 1994 concurring opinion that lower courts were not considering that very law.
Similarly, when the 4th Circuit ruled that a key part of the Violence Against Women Act is unconstitutional, the decision relied on a 1995 Supreme Court case that other circuit courts have largely ignored.
Judges on the 4th Circuit reject political labels and say they are simply paying close attention to the Supreme Court's recent findings.
"Every member of our court sincerely tries to follow the Supreme Court precedent," said Judge J. Michael Luttig, who wrote the majority opinion in the domestic violence case. "And the court, as a whole, is comfortable with that precedent."
Certain categories of plaintiffs who might win in other circuits are almost certain losers before the Richmond court, lawyers say. Baltimore civil rights lawyer C. Christopher Brown said he often takes cases to state court or seeks very modest remedies in federal court so that his opponents will not appeal to Richmond. "Getting your case before the 4th Circuit would be the kiss of death," Brown said.
The court has taken a dim view of affirmative action at schools and colleges. It ruled in 1994 that a University of Maryland scholarship program reserved for African Americans was unconstitutional, and this year it used that precedent to strike down race-based admissions and transfer policies in the Arlington and Montgomery county school systems.
For death row prisoners, the 4th Circuit offers little hope. It granted new trials or new sentences in just 7 percent of death row appeals cases, compared with 42 percent for federal appeals courts in the rest of the country, according to a study by Columbia University law professor James S. Liebman, who studied the years 1973 to 1995.
It has become riskier for lawyers to file environmental and civil rights suits in the 4th Circuit than elsewhere because they will have a harder time recovering their fees.
The Richmond court ruled last year that because a hazardous-waste incinerator stopped discharging mercury into a South Carolina river after a lawsuit was filed, the company should not be fined and does not owe attorneys' fees to the environmental groups that sued. In other circuits, lawyers who act as a "catalyst" for change but don't win an actual judgment can still recover their fees. The South Carolina case is among those the Supreme Court has agreed to review.
Part of the reason 4th Circuit opinions are almost uniformly conservative is that although most opinions are written by randomly selected three-judge panels, all the judges have an opportunity to comment before opinions are published.
And on important cases, the majority does not shrink from ordering a rehearing when it disagrees with panel decisions.
"We want to make certain that the opinions really speak for the court," said Chief Judge J. Harvie Wilkinson III.
In other circuits, most opinions by panels do not receive input from other judges. Thus, even on conservative-dominated circuits, liberals may shape decisions.
The 4th Circuit cases now on the Supreme Court's docket are a crucial test of the new activism the Richmond-based judges have displayed, legal analysts say.
In oral arguments, the high court justices seemed approving of the 4th Circuit decision to prevent the FDA from regulating tobacco, but perturbed by the ruling that struck down the Driver Privacy Protection Act. The cases involving Miranda and the Violence Against Women Act have not yet been argued.
The 4th Circuit "is in sync with a significant part of the Supreme Court," said Georgetown University law professor Susan Low Bloch. "They're not going to get slammed, but they might get reversed. . . . The question right now is how far that five-person [Supreme Court] majority is willing to go."