With Conservative Edge, High Court Cuts a Wide Swath


The Supreme Court term that ended last week showed again that the justices are not shy about imposing their will--whether it is deciding a presidential election, managing the use of public school buildings or even determining the rules of professional golf.

They are known as the "Supremes" in Washington, and for good reason. Confident of their abilities and determined to have the last word on the law, the justices rarely defer to the decisions of others.

Their boldness and decisiveness was on display in this term's most memorable case, Bush vs. Gore.

On a Saturday in mid-December, the court on a 5-4 vote issued an emergency order to stop a statewide hand recount of presidential votes in Florida. And late the following Tuesday, the court issued an unsigned opinion, accompanied by four dissents, that said the recount was unconstitutional and could not continue, effectively making George W. Bush the presidential winner over Al Gore.

While these decisions will be long debated, the court's handling of the case highlights two trends on display throughout the year.

One is judicial assertiveness, a willingness to intervene and reverse decisions made at other levels of government.

The second is ideological. On matters that divide liberals and conservatives, Chief Justice William H. Rehnquist continues to be able to muster a narrow conservative majority. He can almost always rely on Justices Antonin Scalia and Clarence Thomas, and usually on Justices Sandra Day O'Connor and Anthony M. Kennedy.

Besides the Florida case, these justices voted together in 14 other disputes that ended in 5-4 decisions. In these rulings, for example, the court declared that:

* Congress cannot protect state employees with disabilities from job discrimination. The decision in Alabama vs. Garrett rejected a discrimination claim brought by a nursing supervisor who was demoted after she was treated for breast cancer. States have a "sovereign immunity" that shields them from suits, the court said.

* Federal environmental regulators cannot protect isolated wetlands and ponds. The Clean Water Act does not reach these inland waters, it said.

* The Civil Rights Act of 1964 does not authorize lawsuits from blacks, Latinos or minorities over policies of states, schools, colleges or the police that have a discriminatory effect on them. The law covers only claims of intentional discrimination, it said.

* Local school officials cannot close their buildings to Bible study groups if others are allowed to meet there. Religious groups have a free speech right to be included, it said.

* State and local officials may not restrict the advertising of cigarettes to shield children. The 1st Amendment protects the right to advertise, it said.

Years ago, conservatives complained about the court's liberal activism and its willingness to oversee how police questioned suspects, how schools dealt with prayer and how states administered the death penalty.

These days, the court has become more conservative, but several of these rulings suggest that judicial activism has not waned.

"It's true across the board. [The justices] don't defer to anyone," said former U.S. Solicitor General Walter E. Dellinger.

The court's more liberal members did score some important victories during the term. Indeed, the court turned an increasingly skeptical eye on several laws that had been passed by a Republican-controlled Congress.

In 1996, GOP-backed legislation barred legal aid lawyers from going to court to challenge welfare reform laws. But on a 5-4 vote this year, the court tossed out this restriction as unconstitutional. Kennedy cast the key vote by joining the liberal coalition of John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

O'Connor joined this bloc in a North Carolina case to give states more leeway to cluster black voters in Democratic-leaning electoral districts. So long as districts are redrawn for political reasons, not racial ones, they are constitutional, the court said.

And on a 6-3 decision--with O'Connor, Kennedy, Stevens, Souter, Ginsburg and Breyer in the majority--the court limited the power of police in the war on drugs, striking down the use of roadblocks aimed solely at searching for narcotics.

Even the rule makers in pro sports were not beyond the court's reach. On a 7-2 vote, the justices told PGA Tour Inc. that it must allow disabled golfer Casey Martin to ride in a cart so that he can compete in a tournament.

Last week, the immigration reform laws of 1996 came under attack.

Kennedy joined with the liberal group to rule that the courthouse is not closed to legal immigrants facing deportation because of a criminal record. The Republican Congress had voted to make such deportations virtually automatic, even for those immigrants whose crime was a minor theft or the sale of a small amount of drugs.

Two principles were at issue in the immigration cases. First, federal officials have broad authority over the immigrants. But second, the federal judiciary--and ultimately the Supreme Court--has the power to decide matters concerning constitutional rights.

The Republican Congress went a bit too far, even for a conservative-leaning court, by declaring that "no court shall have the jurisdiction to review any final order of removal" for an immigrant criminal.

This declaration waved a red flag in front of the justices, who think they have the final word on the law. And not surprisingly, they struck it down.

Still, the practical effect of the immigration ruling is likely to be limited.

In its ruling, the high court said that immigrants whose crimes occurred before 1996 can still seek a waiver of deportation from the Immigration and Naturalization Service. But this ruling did not alter the law for those who committed crimes since 1996. They may file a writ of habeas corpus in a federal court, but they have little grounds for winning their claims.

Some immigrant rights lawyers said they feared the high court's rulings would be seen wrongly as major victories.

"This decision was great for a limited class of people, those who pleaded guilty before 1996. It doesn't really do anything for those whose cases came after 1996," said Manuel Vargas, who heads the immigrant rights project for the New York State Defenders Assn. "The law is very harsh for those people, and this doesn't change it. Only new legislation can change it."

Three rulings last week on advertising and free speech left 1st Amendment scholars perplexed.

"They don't know how to deal with the role of money and speech, and the decisions are incoherent," said Northwestern University law professor Martin Redish.

The advertising disputes involved cigarette makers, mushroom growers and political parties.

The cigarette makers won a free-speech ruling that knocks down local and state advertising restrictions, and the mushroom growers won the right to refuse to pay for generic ads promoting the virtues of their product.

But the political parties lost their claimed 1st Amendment right to spend freely to advertise the virtues of their candidates.

Inconsistency aside, the conservative justices these days vote more often in favor of free speech claims, said UCLA law professor Eugene Volokh. He has tracked 1st Amendment cases for seven years, and he said Kennedy, an appointee of President Reagan, votes most often for free speech. Next in line are Thomas and Souter.

Breyer, a Clinton appointee, votes least often in support of free speech.

Also unpredictable is the court's lineup on cases involving the 4th Amendment and its ban on "unreasonable searches and seizures."

In May, Souter allied himself with the conservative bloc in a decision that explored the "nightwalker" statutes of the Middle Ages, as well as the "vagabond" laws brought to the American Colonies from England. In writing the majority opinion, Souter concluded that the 4th Amendment was not intended to restrict the power of authorities to arrest a person who was seen committing an offense in public, no matter how minor. Therefore, a Texas police officer did not violate the 4th Amendment when he arrested a mother and took her to jail for not wearing her seat belt.

But a few weeks ago, Scalia wrote a liberal-sounding majority opinion joined by Souter. They concluded the 4th Amendment as originally written was intended to protect the privacy of homes. And therefore it was unconstitutional for the police to scan a home with a heat detector in search of a hothouse for growing marijuana.

In dissent, Stevens and O'Connor wondered how it could be reasonable to seize a person for not wearing a seat belt but unreasonable to use a scanner on a public street.

O'Connor's dissents are rare, however, and she figures to hold the key vote on three major issues coming before the court next term.

The justices will decide whether mentally retarded defendants can be executed and whether the federal government can use affirmative action policies when awarding contracts. The third case, pending appeal, will test whether states can give tax-funded vouchers to parents to send their children to religious schools.

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