[Andrew Cohen] Jury’s still out on justice in 2010

Perhaps the simplest thing to say about the law in 2010 is this: Never in America were so many judged by so few with such inconclusive results.

As our population rose, and Americans filed 100 million or so lawsuits, the role of the courts somehow shrank in our lives. Dozens of federal judgeships remained empty throughout the year, the victim of partisan bickering on Capitol Hill. State judicial systems were wracked by budget cuts, which forced furloughs and court closures. And our prisons overflowed even though, by some accounts, we are opening on average a new one weekly.

In 2010, President Obama nominated, and the Senate easily confirmed, a new Supreme Court justice ― the fourth in just five years. Yet we know as little about Elena Kagan as we knew about John G. Roberts Jr., Samuel A. Alito Jr. and Sonia Sotomayor after they came before the Senate Judiciary Committee and talked ceaselessly without saying anything at all. For Kagan, and for the rest of us, 2010 was a transitional year in the law ― from the George W. Bush era to whatever is to come from however long the Obama era lasts. It will be five years, at least, before anyone can make a conclusive judgment about Kagan’s jurisprudence.

It won’t take that long to untangle some of the year’s thorniest legal disputes, none of which was resolved by year’s end. But all of the major national legal issues of the moment ― the constitutionality of the nation’s new health care law, the validity of California’s ballot initiative banning same-sex marriage, the effect of Arizona’s controversial new immigration measures on the doctrine of federal preemption, to name just a few ― are still ripening on the vine of judicial appeal, doused in political rancor.

Also ripening on the vine in 2010 ― or rather in detention at the U.S. prison at Guantanamo Bay, Cuba ― was Khalid Shaikh Mohammed, the self-proclaimed key planner in the 9/11 terrorist attacks. When the year started, it looked as if Mohammed, who was captured in 2003, would by now be nearing a federal civilian trial for murder, terrorism and conspiracy. Instead, his prosecution was placed on hold. It too is the victim of partisan bickering (and the disheartening refusal of New York’s leaders to have their community host the trial for the man accused of helping commit the largest crime in American history).

But it wasn’t just Mohammed and dozens of other terrorism detainees who spent yet another year in legal limbo. Thousands of prisoners in California also were awaiting their fate after state officials and the federal courts clashed over a plan to ease unconstitutional overcrowding in state facilities by releasing tens of thousands of inmates before their full terms were up. “This case has been pending for 20 years, has it not?” asked Justice Ruth Bader Ginsburg during the oral argument on the matter in December (she was referring to the fact that one of the unresolved prison condition lawsuits was filed in 1990). “How much longer do we have to wait? Another 20 years?”

Speaking of a discomforting lack of finality, in Texas 2010 was yet another year of waiting for help and justice for juvenile offenders who have been raped or otherwise sexually abused by their guards or other prison staff. Despite a federal report that highlighted the scandal, terrible conditions remain, as they do in many other states, such as Arizona, where the prison lobby has become so powerful that some say it’s one of the forces behind the state’s drive to turn undocumented immigrants into prisoners.

For a year that started off with such definitive action ― in January, the Supreme Court gutted the nation’s campaign finance laws via the Citizens United v. Federal Election Commission case ― 2010 turned into a year of anxious waiting on landmark decisions. In the world of sports you might call it a “transition year” for a franchise. In the judicial world, and for the sake of the nation, we should just be glad it’s over.

By Andrew Cohen

Andrew Cohen is CBS Radio News’ chief legal analyst and a columnist for Politics Daily. ― Ed.

(Los Angeles Times)

(McClatchy-Tribune Information Services)