Supreme Court Rulings Herald Rehnquist Era

By sad coincidence, the Supreme Court announced the final rulings of this year’s term on the day that former Chief Justice Warren E. Burger was laid to rest in Arlington National Cemetery.

But the ceremony in a sense could also have symbolized the passing of the torch to his successor, because more than ever, this was the year of the Rehnquist Court.

In 1972, when then-Justice William H. Rehnquist joined the high court, both friends and critics marveled at how the 47-year-old jurist’s conservative principles were fixed in his mind.

Alone on the high court, he championed “federalism”--the theory that the Constitution reserves most power for state and local governments and not Congress and the federal agencies.

He scoffed at “affirmative action,” believing it was nothing more than illegal reverse discrimination. And he mocked as wrongheaded Thomas Jefferson’s comment that the Constitution demands “a wall of separation between church and state.”

In his early years, Rehnquist was dubbed the court’s “Lone Ranger”--personally charming, a brilliant lawyer, but decidedly out of touch with contemporary legal thinking.

But in the 1994-95 term that ended on Thursday, the Rehnquist Court moved dramatically to imprint in law his once-out-of-date notions.

Controlling the 5-4 majority, the chief justice undercut the power of Congress to meddle in local affairs, dealt a crippling blow to government affirmative action and opened the door for religious-rights activists to get public funding on the same basis as other groups.

On matters both large and small, the conservative coalition held together this term. The justices gave states leeway to reduce welfare payments to large households, made it harder for prison inmates to file lawsuits, said wardens could revoke annual parole hearings for long-term inmates and dismantled an innovative but costly desegregation program in Kansas City.

They gave school officials the power to impose drug tests on their students, but crippled the authority of lawmakers to create black-majority electoral districts.

They strengthened the free-speech rights of Christian legal activists who want to display religious symbols on public property, but they cut back the free-speech rights of “ambulance chasing” lawyers who want to send solicitation letters to accident victims.

“There’s no question this is really the ‘Rehnquist Court’ at work,” said USC law professor Erwin Chemerinsky. “It is a conservative court following an activist agenda.”

Added Stanford University law professor Kathleen Sullivan: “This year will be remembered for the sharp turn to the right on race and religion. The court’s own language was often quite dramatic and quite sweeping,” and its rulings “roll back the use of race in all three branches of government.”

For liberals, this term offered only two significant victories, but neither is likely to chart a direction for the future.

On a 5-4 vote, the court struck down state laws that set term limits for congressional representatives. Abandoning his conservative colleagues, Justice Anthony M. Kennedy said he believed strongly in “federalism,” but insisted that terms for members of Congress must be set at the national level, not by each state.

And on Thursday, the court on a 6-3 vote rejected the timber industry’s claim that the Endangered Species Act was not intended to limit development on private land.

This rather startling contention, raised more than 20 years after the law’s passage, was too extreme for the court’s moderate conservatives, Kennedy and Sandra Day O’Connor.

Still, the Republican-controlled Congress can certainly overturn that decision by revising the law, and it may well do so.

By contrast, the court’s rulings on affirmative action, desegregation, redistricting, religion and drug testing, are based on the Constitution and cannot be altered by lawmakers.

Civil rights lawyers say they are stunned at the sweep of this term’s rulings, but no one can be surprised at the direction of the court under Rehnquist’s leadership.

In April, Rehnquist took a seemingly minor case involving a gun found near a school and used it to announce a landmark ruling on the power of Congress.

Speaking for the 5-4 majority, he struck down the federal Gun-Free School Zones Act of 1990 on the grounds that Congress did not have constitutional power to enact such a law. The Constitution says Congress may “regulate commerce . . . among the several states,” he said, but this power does not give federal lawmakers the authority to meddle in local matters, such as a gun crime near a school.

The ruling in United States vs. Lopez marked the first time in 60 years that the high court threw out a federal law as exceeding Congress’ power. It last happened the year the court’s so-called “Nine Old Men” threw out the minimum-wage laws and invalidated much of President Franklin D. Roosevelt’s New Deal.

While no one knows whether Rehnquist’s opinion in the Lopez case is the beginning of a states-rights trend or a one-time reminder that Congress’ power has limits, constitutional scholars say it has shaken up the traditional thinking.

In recent decades, many constitutional law classes do not even teach about the “commerce clause” because it has been a settled issue since 1937. Congress, it was said, could regulate any aspect of American life if it believed that doing so was in the national interest. Suddenly, that legal truism is no longer true.

“Rehnquist wrote a classic opinion for the court. It is clear, broad and speaks with authority,” Yale University law professor Akhil Amar said of the ruling in the Lopez case. “When you’re a law professor, the first thing you think of is: ‘Will this be a good case to teach?’ The answer is definitely yes for Lopez.”

On a practical level, the ruling is already setting off sparks in the lower courts. Some legal experts say they think that recent federal laws on drug possession and protecting abortion clinics are in danger because they may exceed Congress’ power.

Said Eliot Mincberg, legal director for the civil-liberties group People for the American Way: “The conservative activist majority on the court is more willing to limit congressional power than any court we’ve seen since the New Deal.”

The rulings on affirmative action, racial gerrymandering and religion are also sure to reverberate in the lower courts.

In Adarand vs. Pena, Rehnquist assigned the majority opinion to his Stanford Law School classmate, O’Connor, who said “all racial classifications” by the government are highly suspect and generally unconstitutional.

Her opinion puts in jeopardy every federal program that explicitly uses race as a criterion for awarding contracts or jobs.

While the court did not finally close the door to federal affirmative action, it came close. “The best you can say is that the door is slightly ajar,” Sullivan said.

On Thursday, the same five-member conservative majority united to strike a blow at “racial gerrymandering.” In Miller vs. Johnson, the court struck down a Georgia district drawn to create a black majority and ruled that lawmakers may not use race as “the predominant factor” in drawing district lines.

Over the years, Rehnquist has consistently disputed the view that the First Amendment’s ban on an “establishment of religion” means that the government must keep church and state entirely separate. While he agrees that the government cannot fund a state church or favor one religion over another, he has also argued that religious groups can receive public funds if the program is “neutral” toward religion. For example, if a state gives “vouchers” to children to enroll in private schools, that money could be used for parochial schools.

Thursday’s 5-4 ruling in Rosenberger vs. University of Virginia marked the first time the court upheld the use of state funds to promote religious expression, in this case a student magazine that espoused “a Christian perspective” on contemporary life.

Not surprisingly, religious-rights advocates were delighted. The ruling finally “repudiates the popular misconception that treating religious groups equally violates” the First Amendment, said Steven McFarland, a lawyer for the Christian Legal Society.

In its term-end summary, People for the American Way faulted the court for “chipping away at the separation of church and state.”

For his part, the chief justice did not stay around Washington to hear the applause or the criticism. As usual, he goes his own way.

On the last day of the term, he headed off to Britain to teach at Cambridge University. A fan of the World War I poet Rupert Brooke, Rehnquist says he will be taking the time to “explore some of his old haunts” around the ancient university town.

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Lineup on Key Decisions

How the nine justices voted on seven of the biggest decisions of the term:

Issue: Affirmative action

William Rehnquist: Sided with majority

John Paul Stevens: Sided with dissent / Indicates author of opinion*

Sandra Day O’Connor: Sided with majority / Indicates author of opinion*

Antonin Scalia: Sided with majority

Anthony Kennedy: Sided with majority

David Souter: Sided with dissent

Clarence Thomas: Sided with majority

Ruth Bader Ginsburg: Sided with dissent

Stephen Breyer: Sided with dissent

****

Issue: School desegregation

William Rehnquist: Sided with majority / Indicates author of opinion*

John Paul Stevens: Sided with dissent

Sandra Day O’Connor: Sided with majority

Antonin Scalia: Sided with majority

Anthony Kennedy: Sided with majority

David Souter: Sided with dissent / Indicates author of opinion*

Clarence Thomas: Sided with majority

Ruth Bader Ginsburg: Sided with dissent

Stephen Breyer: Sided with dissent

****

Issue: Endangered species

William Rehnquist: Sided with dissent

John Paul Stevens: Sided with majority / Indicates author of opinion*

Sandra Day O’Connor: Sided with majority

Antonin Scalia: Sided with dissent / Indicates author of opinion*

Anthony Kennedy: Sided with majority

David Souter: Sided with majority

Clarence Thomas: Sided with dissent

Ruth Bader Ginsburg: Sided with majority

Stephen Breyer: Sided with majority

****

Issue: Limiting Congress’ power

William Rehnquist: Sided with majority / Indicates author of opinion*

John Paul Stevens: Sided with dissent

Sandra Day O’Connor: Sided with majority

Antonin Scalia: Sided with majority

Anthony Kennedy: Sided with majority

David Souter: Sided with dissent

Clarence Thomas: Sided with majority

Ruth Bader Ginsburg: Sided with dissent

Stephen Breyer: Sided with dissent / Indicates author of opinion*

****

Issue: Racial gerrymandering

William Rehnquist: Sided with majority

John Paul Stevens: Sided with dissent

Sandra Day O’Connor: Sided with majority

Antonin Scalia: Sided with majority

Anthony Kennedy: Sided with majority / Indicates author of opinion*

David Souter: Sided with dissent

Clarence Thomas: Sided with majority

Ruth Bader Ginsburg: Sided with dissent / Indicates author of opinion*

Stephen Breyer: Sided with dissent

****

Issue: Term limits

William Rehnquist: Sided with dissent

John Paul Stevens: Sided with majority / Indicates author of opinion*

Sandra Day O’Connor: Sided with dissent

Antonin Scalia: Sided with dissent

Anthony Kennedy: Sided with majority

David Souter: Sided with majority

Clarence Thomas: Sided with dissent / Indicates author of opinion*

Ruth Bader Ginsburg: Sided with majority

Stephen Breyer: Sided with majority

****

Issue: Religion

William Rehnquist: Sided with majority

John Paul Stevens: Sided with dissent

Sandra Day O’Connor: Sided with majority

Antonin Scalia: Sided with majority

Anthony Kennedy: Sided with majority / Indicates author of opinion*

David Souter: Sided with dissent / Indicates author of opinion*

Clarence Thomas: Sided with majority

Ruth Bader Ginsburg: Sided with dissent

Stephen Breyer: Sided with dissent

* Both sides, majority and dissent, issue written opinions.

Source: The Times Washington Bureau

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Major Decisions

This term, the Supreme Court decided that:

FIRST AMENDMENT

* Child pornography law is constitutional because it requires that sellers know if actors were minors. (U.S. vs. X-Citement Video)

* Congress violated the free-speech rights of federal workers by barring them from making money writing articles or giving speeches in their spare time. (U.S. vs. NTEU)

* People have a free-speech right to pass out anonymous leaflets on political topics. (McIntyre vs. Ohio)

* State bars may keep lawyers from sending solicitations to accident victims for 30 days. (Florida Bar vs. Went for It Inc.)

* Private sponsors of a parade cannot be forced to include marchers, such as gays and lesbians, whose message conflicts with theirs. (Hurley vs. Irish American Gays)

* A state university may not refuse to subsidize a student magazine simply because it offers a Christian perspective. (Rosenberger vs. University of Virginia)

* State officials may not exclude the display of a cross in a public park if they permit other symbols. (Capitol Square vs. Pinette)

****

FEDERAL VS. STATE

* Congress exceeded its power by passing a law that makes it a crime to have a gun near a school. (Lopez vs. U.S.)

* States may not limit the terms of members of Congress. (U.S. Term Limits vs. Thornton)

* States can revoke the right to annual parole hearings for long-term inmates. (California vs. Morales)

* States may limit welfare benefits for large households. (Anderson vs. Edwards)

* Congress intended to protect the habitat of animals on the verge of extinction when it passed the Endangered Species Act. (Babbitt vs. Sweet Home Chapter)

****

CIVIL RIGHTS

* Federal programs that set “racial classifications” for awarding contracts or jobs are generally unconstitutional. (Adarand vs. Pena)

* A federal judge in Kansas City exceeded his power by ordering costly upgrades in the quality of the city schools as part of a desegregation plan. (Missouri vs. Jenkins)

* Employers cannot block job discrimination lawsuits by dredging up old evidence that shows the worker violated some job rules. (McKennon vs. Nashville Banner)

* Electoral districts are unconstitutional if race was the “predominant factor” in their design. (Miller vs. Johnson)

* Cities may not zone out group homes for alcoholics and former drug abusers. (Edmonds vs. Oxford House)

****

CRIME AND PUNISHMENT

* The exclusionary rule does not demand the suppression of evidence found when police, because of a computer error, wrongly arrested a suspect. (Arizona vs. Evans)

* The Fourth Amendment does not bar school officials from forcing students to undergo regular drug tests. (Vernonia vs. Acton)

* Judges should generally dismiss lawsuits filed by prisoners who say their rights were violated by extra punishments imposed on them. (Sandin vs. Conner)

* Prison inmates who cite new evidence that would likely convince a reasonable juror that they are innocent deserve another chance to appeal in federal court. (Schlup vs. Missouri)

* The federal law against false statements applies only to the executive branch and does not cover lies told to Congress or in judicial proceedings. (Hubbard vs. U.S.)

* The Fourth Amendment usually requires police with a search warrant to “knock and announce” their presence before they enter a residence. (Wilson vs. Arkansas)

* An official who discloses the existence of a wiretap violates the law, even if the tap has expired. (U.S. vs. Aguilar)

Source: The Times Washington Bureau