Justices to Hone Conservative Edge

As the U.S. Supreme Court opens the second half of its term today, its conservative majority has the opportunity to push the law to the right on several fronts before the incoming George W. Bush administration has a chance to pursue a legal agenda.

The justices are expected to rule soon on cases concerning civil rights, employment and the environment--issues that have divided the court’s conservative and liberal blocs.

Last month’s presidential election cases put an extraordinary spotlight on the high court, and the 5-4 ruling that ended the Florida hand recounts showed vividly its ideological divide.

But the split is nothing new for the justices. Unlike other courts, they are free to choose the legal issues they will decide. And under Chief Justice William H. Rehnquist, the docket has consistently had a conservative edge.

And in recent years, Rehnquist and his four conservative allies--Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas--have wielded their power more boldly, especially when confronted with liberal policies from the Clinton administration or laws enacted by Democratic-controlled Congresses.

Last year, for example, the court, by 5-4 votes, threw out President Clinton’s new anti-tobacco regulations and struck down as unconstitutional the Violence Against Women Act that allowed rape victims to sue their attackers in federal court. The high court also shielded state agencies and public colleges from being sued by victims of age discrimination, a 5-4 ruling that left the nation’s state employees with fewer rights than private-sector workers.

If that narrow conservative majority holds together this year, it is likely to block the Clinton administration’s new, stricter clean air standards and cut back on the job protections for state employees with disabilities.

The clean air case poses a test between public health and costs to industry. In 1997, the Environmental Protection Agency said that to prevent asthma and other breathing troubles, smog and soot needed to be reduced further. But the U.S. Chamber of Commerce and other business groups have challenged the proposed new air standards as too costly.

Meanwhile, the key job discrimination case is a test of disability rights versus states’ rights. It also renews a bitter and recurring dispute between the court’s conservative and liberal factions.

The outcome of the disabilities case from Alabama, which renews the bitter dispute within the court over states’ rights, will affect the job rights of at least 5 million state employees nationwide.

Since 1995, the court, in a series of 5-4 decisions, has shielded states from federal laws, including some civil rights laws, and has said that states are protected by their “sovereign immunity.” The four liberal-leaning justices--John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer--have strongly dissented in each instance and have contended that the conservatives have invented doctrine that is not found in the U.S. Constitution.

The pending case began when Patricia Garrett, a nurse at the University of Alabama at Birmingham Hospital, learned she had breast cancer and took a medical leave. When she returned, she was demoted. After complaining unsuccessfully, she sued the hospital under the Americans With Disabilities Act.

Rather than defend the hospital directly, the state’s lawyers intervened and claimed sovereign immunity. Although they lost in the lower courts, the Supreme Court heard their case Oct. 11. If the conservative majority sides with Alabama, the ruling will likely strip all state employees nationwide of their protections under the disabilities act.

In another environmental case, the court is considering whether to cut back on the power of federal wildlife officials to regulate wetlands and ponds. Conservative lawyers say the Constitution limits federal authority to waterways that are navigable.

The court also is expected to rule soon on whether companies can prevent their workers from going to court to sue them for discrimination.

The issue of mandatory arbitration of job claims is of enormous interest to American business. Corporate lawyers say that arbitration is quicker, cheaper and no less fair than going to court, and they argue that the Federal Arbitration Act of 1925 gives them the authority to enforce arbitration agreements that are signed routinely by new employees.

In a case that was heard by the court Nov. 6, a Northern California computer salesman said he was forced to quit his job at a Circuit City store after his co-workers and supervisor harassed him because he is gay. He sued for damages in Sonoma County Superior Court under California law, and he asked that his claim be heard by a jury.

But lawyers for Circuit City said the Federal Arbitration Act trumps the California antidiscrimination measure, and they are seeking a ruling requiring the salesman’s claim be decided by an industry arbitrator.

Siding with the salesman, workers’ rights lawyers asked why Congress and state legislatures have passed antidiscrimination laws giving workers a right to sue if companies could choose to opt out of the system.

During the oral argument, the justices sounded as though they were sharply split. If the majority were to rule squarely for Circuit City, the decision would be a huge victory for business and could limit the rights of virtually all employees to sue their employers for discriminating against them. A ruling is expected before the court session ends.

A pending North Carolina case involving redistricting may determine whether more or fewer African American and Latino officials are elected over the next decade. At issue is whether lawmakers can draw districts to include more black Democrats. In three previous 5-4 rulings, the court’s conservative majority has said no. The justices called the black-majority districts in North Carolina, Georgia and Texas “racial gerrymanders.”

In 1997, North Carolina lawmakers redrew a disputed district so that it had a slight majority of whites yet included largely black neighborhoods in Charlotte and Greensboro. Rep. Melvin L. Watt, a black Democrat, won reelection there, but white voters repeatedly have challenged the district as being tilted unfairly in favor of blacks.

In defending Watt’s district, Clinton administration lawyers argued in December that if states can draw districts that favor white Republicans, they should also be allowed to draw others to favor black Democrats.

The court heard oral arguments Nov. 27 and will hand down its ruling before it adjourns for the summer. It’s a decision that likely will guide state legislators as they begin using 2000 census data to redraw electoral districts for Congress and state legislatures.

On Jan. 16, lawyers for Alabama will come before the high court to urge that federal civil rights laws be limited in their application. At issue directly is Alabama’s adoption of an English-only policy.

Martha Sandoval, a Spanish speaker, challenged the state’s practice of giving written driver’s tests in English only and she won in the U.S. Court of Appeals in Atlanta. The appeals court ruled that the English-only rule violated the Civil Rights Act of 1964 because it had a discriminatory effect on people based on their national origin.

In a broad appeal, Alabama officials are asking the high court to limit the federal civil rights laws to instances of intentional discrimination and to rule that they do not apply to testing policies that have an adverse effect on minorities. The outcome in this case could determine the fate of lawsuits that challenge colleges or the National Collegiate Athletic Assn. over the use of standard test scores.

The sports world and disability rights advocates are following the case of golfer Casey Martin, which will be heard Jan. 17. Two federal courts in California ruled that under the Americans With Disabilities Act the professional golf tour must allow Martin to ride in a cart in tournaments. Because a circulatory ailment makes it painful for Martin to walk, riding in a cart is a “reasonable accommodation,” the lower court judges said.

But the Supreme Court agreed to hear an appeal that seeks to have competitive events shielded from the disability rights law.

Other cases will deal with:

* Property rights. Anthony Palazzolo maintains that Rhode Island has blocked him for 40 years from building homes on his land along the coast because the area has been deemed a sensitive wetland.

The Pacific Legal Foundation in Sacramento, which regularly litigates property cases in California, took to the high court Palazzolo’s claim that the state must pay him for his property. The justices voted to hear the case Feb. 26.

The conservative justices have strengthened the rights of landowners in past cases, but they have failed to agree on a clear rule on when the government must pay if it blocks development.

* Tort reform. Also on Feb. 26, the justices will consider whether to require appellate judges to review skeptically all awards of punitive damages. Large punitive damage verdicts are a particular thorn for big-business lawyers.

* Campaign finance. The justices will be considering not whether to limit election spending but whether to expand it. Lawyers for the Colorado Republican Party are asking the court to rule that political parties have a free-speech right to spend as much as they choose to promote their candidates. The case will be heard Feb. 26.

* Medical marijuana. The conservative justices already have signaled that they are inclined to nullify California’s medical marijuana law, which permits the distribution of cannabis to people who are seriously ill, as a violation of zero-tolerance federal drug laws.

When the court hears the case (it has not scheduled arguments), lawyers for the new Bush administration likely will take up the Clinton administration argument that federal drug laws trump California’s Compassionate Use Act.

In August, the justices issued an emergency order to halt the legal distribution of cannabis in Oakland after the U.S. 9th Circuit Court of Appeals in San Francisco ruled that drug distribution can be legal when it is a “medical necessity.” As with the arbitration case, the medical marijuana case tests whether the conservative justices will put aside their usual preference for states’ rights and instead rule that federal law prevails over the wishes of the state.

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Pending Cases in Supreme Court

Workers’ Rights

* Does the Constitution shield state agencies from being sued by their employees under the Americans With Disabilities Act? (University of Alabama vs. Garrett, 99-1240. Argued Oct. 11.)

* Can companies prevent their workers from going to court to sue for alleged discrimination and instead force them into binding arbitration? (Circuit City Stores vs. Adams, 99-1379. Argued Nov. 6.)

Environment

* Did the Environmental Protection Agency exceed its authority in proposing new clean-air standards? (Browner vs. American Trucking Assn., 99-1257. Argued Nov. 7.)

* Do federal clean-water officials have the power to oversee wetlands and ponds that are not linked to navigable waterways? (Solid Waste Agency vs. Corps of Engineers, 99-1178. Argued Oct. 31.)

Race and Politics

* Can states deliberately include more blacks and Latinos in Democratic-leaning electoral districts? (Hunt vs. Cromartie, 99-1864. Argued Nov. 27.)

Upcoming Cases

English-Only

* Can states enforce English-only policies that have a discriminatory effect on foreign-born residents? (Alexander vs. Sandoval, 99-1908. To be heard Jan. 16.)

Disabled Golfer

* Does the federal disability-rights law extend to competitors in sporting events? (PGA vs. Martin, 00-24. To be heard Jan. 17.)

Property Rights

* Must the government pay a landowner if it blocks all development of his property? (Palazzolo vs. Rhode Island, 99-2047. To be heard Feb. 26.)

Punitive Damages

* Must appellate judges carefully and skeptically review punitive awards handed down by juries? (Cooper Industries vs. Leatherman Tools, 99-2035. To be heard Feb. 26.)

Medical Marijuana

* Can the states authorize nonprofit cooperatives to give cannabis to people who are seriously ill, or does this violate federal drug laws? (U.S. vs. Oakland Cannabis Buyers Cooperative, 00-151. Argument not yet scheduled.)

Campaign Finance

* Can federal law limit how much political parties spend to promote their candidates for federal office? (FEC vs. Colorado Republicans, 00-191. To be heard Feb. 26)