Court’s Unforgettable Year

In years past, the U.S. Supreme Court saved its most controversial decisions for the final week of the term, just before the justices retreated to summer homes and private lives. This term, the court’s defining moment came early, in December, when the justices elbowed their way into the Florida election standoff. The court’s breathless monster of a ruling in Bush vs. Gore stopped the ballot recounts in Florida and handed the White House to George W. Bush.

The high court’s rulings this year were, overall, unpredictable, often inconsistent and surprisingly hard to pigeonhole. Bush vs. Gore, however, is the story that sticks in the mind, forever putting to rest the notion that conservative judges cannot be activist judges.

The odd, disjointed group of decisions that make up the Bush-Gore case may be the lasting legacy of William H. Rehnquist’s tenure as chief justice. The conservative majority he has led since 1986 eagerly asserted its jurisdiction in a dispute over how Florida courts interpreted Florida law. The majority’s finding that a recount would violate Bush’s equal-protection guarantees under the Constitution is at odds with a string of rulings by this same court giving states increasingly broad latitude to act as sovereign governments. It also conflicted with the court’s denial of nearly all equal-protection claims brought by minorities, women and the disabled. The court dishonored itself as a fair, consistent and apolitical umpire of the American democracy.

The justices bobbed back and forth on the rights of criminal defendants. The majority held that police cannot use heat detectors to peer into private homes without a search warrant. Yet it also allowed police in Texas to arrest and jail a driver simply because she was not wearing her seat belt and let Illinois police keep a homeowner out of his own house while officers waited for a search warrant.

A string of free-speech decisions generally expanded liberty in this area. Late last month the court said that growers cannot be forced to pay for farm product advertising and states cannot ban tobacco advertising near schools. The court also upheld campaign spending limits, a decision that may augur well for judicial review of the campaign reform bill now pending in Congress.

On civil rights, however, a good decision requiring the PGA Tour to allow a disabled golfer to ride a cart between holes is so narrow as to affect possibly only the plaintiff, Casey Martin. At the same time, the court dramatically shrank the definition of a disability under the Americans With Disabilities Act. The court continued to carve out new exemptions for states, as sovereign governments, from complying with that federal law. It also ended a 35-year-old practice of allowing private lawsuits against public agencies that receive federal funds as a way to enforce anti-discrimination laws. In that case, a Spanish-speaking resident of Alabama sued the state because it stopped offering driver’s exams in Spanish. In all, the rulings unfairly close the door to valid claims by individuals and groups.

The court that rendered these decisions, many reinterpreting long-settled law, can rightly be described as activist. Some, particularly the restrictions on discrimination suits, may do broad harm. But it is Bush vs. Gore that will be remembered and that will echo through Senate hearings later this year on Bush’s first nominees to the federal bench.