Rehnquist Court ‘Back to the Future’

Backed by four fellow conservatives, Chief Justice William H. Rehnquist will resume leading a quiet constitutional revolution-in-the-making as the Supreme Court begins its new term next week.

In a series of rulings since 1995, he has revived the once-discredited doctrine of states’ rights and reined in the power of the national government. No one at the high court rhapsodizes about “building a bridge to the 21st century” or marvels at how computers are creating a global economy.

On the contrary, Rehnquist and his conservative colleagues--Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Sandra Day O’Connor--are looking back to the 18th century and seeking to adhere faithfully to the original vision of the U.S. Constitution of 1787. The individual states came together then to form a national government with limited powers, such as regulating commerce among the states.

The conservative majority will have new chances to further this agenda in the new term, taking up cases in which they could shield states from their employees’ discrimination claims, free big donors from campaign funding limits and allow public aid to flow to religious schools.

The justices also will decide whether to permit the Food and Drug Administration to regulate tobacco as a drug.

These cases are among 35 disputes set to come before the high court this fall, and they reflect again the conservative agenda set by Rehnquist. Unlike judges in other courts, the justices of the Supreme Court choose the cases they decide and Rehnquist has shrewdly used this power to reshape the law.

Arguments at the Supreme Court sometimes have a jarring “Back to the Future” quality.

In its last session, for example, the justices cited the states’ “sovereign immunity” and handed down two rulings: one that barred state probation officers in Maine from suing the state to collect unpaid overtime wages required by federal law and another that shielded state institutions, including universities, from being sued for violating patents or trademarks.

In the Maine case, the justices apparently did not consider whether or why the state as an employer refused to follow the law. Instead, the conservative justices concentrated on what the delegates from the original states were thinking in 1787 when they drafted the Constitution, and ruled that states have a “sovereign immunity” shielding them from private lawsuits.

Maine’s lawyer, picking up on that reasoning, argued that permitting itself to be sued for violating federal law was not part of “what we had agreed to.”

One liberal justice found that claim “bizarre”; Maine, after all did not become a state until 1820. But conservative justices were not convinced.

“I can’t conceive the Constitution would have been ratified if the states knew they could be sued as states in their own courts,” Kennedy said.

Congress since the 1930s has imposed minimum wages and other workplace rules on employers as part of its power to regulate commerce, and these days, public institutions--including universities, schools and hospitals--are now the largest employers in most states.

But the court’s 5-4 ruling in the Maine case left the nation’s 4.7 million state workers with no practical way to uphold the rights granted them by federal labor laws.

The opinions on patents and trademarks, handed down on the same day in June, were written by Rehnquist and Scalia. Liberal members of the court, sounding aghast, pointed out that state universities and their laboratories have become major players in research and technology. They own hundreds of patents and frequently battle in court with private high-tech firms. Giving state agencies legal immunity for stealing patents is unfair as well as unworkable, Justice John Paul Stevens complained.

Next week, the justices pick up where they left off in June.

They will consider whether state employees--and possibly the tens of millions of local government workers--are still protected by federal anti-discrimination laws.

That question arose when a Florida State University physics professor, J. Daniel Kimel, and several colleagues claimed that the school’s salary structure was biased in favor of younger faculty members. They sued their employer for damages under the federal Age Discrimination in Employment Act.

Rather than dispute the professors’ claim, the state maintained that it was immune from such suits, and it won before the U.S. court of appeals in Atlanta. The case (Kimel vs. Florida Board of Regents, 98-791), to be heard Oct. 13, will decide whether state agencies are shielded from age bias claims. If the answer is yes, the court’s decision will cast doubt on whether any public employees are protected by other federal civil rights laws.

Two other states’ rights cases are also pending.

Congress in 1994 barred states from disclosing personal data from drivers’ records, such as names and addresses. The law was passed partly in response to the murder in Los Angeles of actress Rebecca Schaeffer. A stalker had obtained her address from motor vehicle records.

But Charlie Condon, South Carolina’s attorney general, challenged the federal privacy mandate and won a ruling striking down the federal law as a states’ rights violation. The appeal (Reno vs. Condon, 98-1464) will be heard Nov. 10.

The third case tests the federal False Claims Act. A lawyer who works for a Vermont agency claimed that the state was misspending federal environmental funds and sued the state for fraud. The case (Vermont vs. United States, 98-1828), to be heard in late November, will test whether the state is shielded from such claims.

The chief justice also has been reshaping the law on religion. Rehnquist believes in giving the states more freedom to aid parochial schools, and a case from Louisiana could help make a big step in that direction.

During the 1960s, the then-liberal-leaning court interpreted the Constitution as requiring strict separation between church and state. In several later rulings, the justices struck down state laws that gave direct aid, such as maps and equipment, to religious schools.

Now the issue is back, but it will be decided by a more conservative court.

Federal education funds flow to states and public school districts, and the law says that an “equitable” share should go to children in private and parochial schools. But last year a U.S. appeals court struck down such an arrangement in a Louisiana district on grounds that the computers and other equipment amounted to direct aid to religious schools.

The justices will hear an appeal that asks the court to uphold a program of “evenhanded” assistance to children in religious schools. If the conservative majority adopts that view in the case (Mitchell vs. Helms, 98-1648), it will be seen as another signal endorsing vouchers for students in private schools.

Meanwhile, official limits on campaign donations will be reconsidered this term.

Liberal reformers have been urging the justices to take another look at the landmark Buckley vs. Valeo ruling of 1976, but they may not be happy with the result.

Missouri’s lawmakers imposed a $1,075 limit on contributions to statewide candidates, yet a U.S. court of appeals in St. Louis struck down the law on 1st Amendment grounds. In keeping with the ethic of the “show me” state, the judges said that they saw no evidence of corruption in the state’s campaign finance system and, therefore, saw no justification for the official restriction on political giving.

If the high court upholds that conclusion in Nixon vs. Shrink Missouri PAC, 98-963, it will cast doubt on all limits on campaign contributions.

The tobacco case does not involve the Constitution but rather the meaning of the word “drug” in the Food, Drug and Cosmetic Act of 1938. Congress gave federal regulators broad authority over substances “other than food, intended to affect the structure or any function of the body of man.”

Three years ago, the Clinton administration declared tobacco and cigarettes to be drugs under this definition and therefore issued national regulations to combat youth smoking.

But the tobacco industry challenged the move as going beyond the law, and the U.S. court of appeals in Richmond, Va., agreed on a 2-1 vote. The high court will hear the case (FDA vs. Brown & Williamson, 98-1152) to clarify the government’s regulatory power over cigarettes.