Supreme Court Term Marked by Election Controversy Ends with Victory for Immigrants' Rights
FOR IMMEDIATE RELEASE
NEW YORK--The Supreme Court Term that ended today included important rulings on free speech and privacy, immigrants' rights, civil rights and states' rights. But, the American Civil Liberties Union said, the 2000 Term's place in history will inevitably be shaped by the ongoing debate over Bush v. Gore, and the Court's unprecedented role in resolving the outcome of last year's presidential election.
"Despite our disagreement with many recent decisions by the Supreme Court, its credibility as an institution that acts on the basis of principle is critical over the long run in preserving civil liberties," said Steven R. Shapiro, national legal director of the ACLU. "If the public perceives that the Court is acting instead on the basis of political calculation, the fallout will damage not only the Court but also the rule of law," Shapiro added.
The question arises after Bush v. Gore because of the seeming disparity between what the Court said and what the Court did. The majority opinion purported to rest on the unassailable principle that every vote in a democracy should be entitled to equal weight. However, the Court never adequately explained how that principle was applied to validate an election plagued by inaccuracies and inequities that were reported on a daily basis in the worldwide press.
Since last fall, the ACLU and other civil rights groups have filed a series of lawsuits in Florida and elsewhere challenging the reliance on flawed electoral systems that not only fail to count every vote equally, but often operate in a racially discriminatory manner.
"The legacy of Bush v. Gore will be shaped in large part by the Court's ultimate response to these other challenges," Shapiro noted. "We will then have a better idea of whether the Court actually announced a constitutional principle in Bush v. Gore, or merely a result."
What is already clear is that the Court's willingness to become so deeply involved in a presidential election for the first time in history is yet further evidence of the Court's expansive view of its own power and prerogatives. "While continuing to praise the values of judicial restraint," Shapiro commented, "the Court is increasingly acting like a referee who has taken over the game."
The Court's record this year shows that it remains generally sympathetic on free speech issues and has become more receptive to privacy claims. The Court also issued a severe rebuke to the immigration service this Term by holding in two landmark decisions that the government may not deport aliens without judicial review, and may not indefinitely detain aliens it cannot deport.
However, with the notable exception of the Court's immigration decisions, "its march through the federal civil rights laws has begun to resemble a scorched earth policy," Shapiro said.
"Just as the Warren Court is remembered for its record on individual rights, the Rehnquist Court will be remembered for its focus on states' rights," Shapiro explained. "By aggressively questioning congressional authority to remedy persistent discrimination in American life, the Court has seriously undermined civil rights enforcement and contributed to the greatest reallocation of government power since the New Deal."
The American with Disabilities Act was this year's victim. In Board of Trustees of the University of Alabama v. Garrett, the Court once again favored states' rights over civil rights when it held that Congress exceeded its authority by giving state employees who have suffered discrimination on the basis of disability the right to sue their state employers for money damages.
The decision, in some ways, is even more disheartening than last year's ruling that state employees could not invoke the protections of the federal age discrimination law. As the dissent in Garrett pointed out, Congress had amassed a voluminous record of discrimination against people with disabilities. "If that record is insufficient to establish a constitutional basis for congressional action, then the power of Congress to enforce the Fourteenth Amendment has reached its lowest ebb in the modern era," Shapiro observed.
The Court's decision in Alexander v. Sandoval (a case in which the ACLU served as co-counsel) demonstrates a hostility to civil rights claims even in contexts where congressional authority is clear. Under regulations adopted pursuant to Title VI of the 1964 Civil Rights Act, federal funds may not be used to support any program that has a racially discriminatory impact.
The Court's ruling that private citizens may not bring a claim of racial discrimination under the Title VI regulations reversed thirty years of law and the unanimous view of every federal circuit that had considered the question. For the future, it presents a severe impediment to civil rights plaintiffs who have long relied on the Title VI regulations to support a broad array of discrimination lawsuits, from racial profiling to environmental justice.
Unfortunately, when the issue was civil rights rather than states' rights, the Court conspicuously abandoned its attitude of judicial skepticism in Nguyen v. INS (another case in which the ACLU served as co-counsel).
As a result, the Court upheld a federal statute that expressly discriminates on the basis of gender by making it easier for an out-of-wedlock child born abroad to obtain citizenship through an American mother than an American father. Most disturbingly, the majority opinion rested in part on the assumption that mothers are more likely than fathers to be involved in raising their children -- precisely the sort of outmoded stereotype that the Court has routinely rejected in other gender discrimination cases.
Not only is it more difficult to win civil rights cases, it is more difficult even to bring them. In Circuit City Stores v. Adams, the Court made it easier for employers to insist that any employment discrimination claim must be arbitrated rather than litigated. And, in Buckhannon Board & Care Home v. West Virginia, the Court ruled that civil rights plaintiffs could no longer recover attorney's fees based on the theory that the filing of their lawsuit had served as a "catalyst" for a change in government policy, thereby significantly diminishing the economic incentive to bring civil rights claims that Congress had sought to create a quarter century ago when it first authorized the recovery of fees in civil rights cases.
In this context, the Court's coordinated decisions in INS v. St. Cyr and Calcano-Martinez v. INS (two ACLU cases), assume even greater significance. Rejecting a claim advanced by both the Clinton and Bush Administrations, the Court held in St. Cyr, and reaffirmed in Calcano-Martinez, that the 1996 amendments to the immigration law were never intended to slam the courthouse doors entirely shut for legal immigrants facing deportation based on past criminal convictions.
Although the Court reached this conclusion as a matter of statutory interpretation, the majority opinion in St. Cyr leaves little doubt that any congressional scheme that attempted to insulate deportation orders from all judicial review on pure questions of law would be unconstitutional. Underscoring the importance of judicial review, the Court then held that the government had, in fact, misinterpreted the law when it ruled that immigrants who pleaded guilty to a crime prior to 1996 were not entitled to claim the benefit of a waiver procedure in force at the time of their pleas.
In another important immigration victory, the Court held in Zadvydas v. INS that the government may not indefinitely detain aliens it is unable to deport in the "reasonably forseeable future." As in St. Cyr, the Court based its holding on a reading of the statute. But, as in St. Cyr, the Court was forceful in noting that "a statute permitting indefinite detention of an alien would raise a serious constitutional problem."
With the nation's redistricting process now underway following the 2000 Census, the Court also deserves credit for its candid acknowledgment in Hunt v. Cromartie that race and party affiliation are often closely related and can be considered in tandem when drawing district lines. On the other hand, the fact that the constitutionality of the same congressional district was before the Court for the fourth time in the past eight years offers a good indication of how confused the Court's voting rights jurisprudence has become.
The Court's Fourth Amendment decisions were surprisingly good for the second year in a row. In Indianapolis v. Edmonds (an ACLU case), the Court struck down the use of drug roadblocks, holding that the suspicionless vehicle stops were designed to detect crime and not to promote traffic safety. In marked contrast to the attitude reflected in United States v. Oakland Cannabis Buyers' Cooperative, which rejected even the possibility of a "medical necessity" defense under the federal drug laws, the Court's decision in Edmonds emphasized that the "severe and intractable nature of the drug problem" cannot be used by the government as a justification for overriding the safeguards of the Fourth Amendment.
Several months later, the Court relied on that same principle in Ferguson v. City of Charleston, when it ruled that a public hospital violated the Fourth Amendment by requiring pregnant women to undergo suspicionless drug testing as a condition of receiving care and then reporting any positive test results to the police, which led in turn to a series of arrests in the maternity ward. The City had tried to argue that its policy was intended to promote maternal and fetal health; however, as public health officials explained in an amicus brief to the Court, it was far more likely to have precisely the opposite effect.
In Kyllo v. United States, the Court turned its attention to high tech surveillance and held that the use of thermal imaging equipment without a warrant to detect heat waves emanating from inside a home violates the Fourth Amendment.
In an opinion that was clearly written with one eye on future technological developments, the Court rejected the claim that the Fourth Amendment provides protection only against the disclosure of "intimate" details inside the home. To the contrary, Justice Scalia wrote, the Fourth Amendment applies whenever the government uses sense-enhancing devices that are not in general public use "to explore details of the home that would previously have been unknowable without physical intrusion."
Regrettably, the Court showed less sensitivity to the practical impact of its rulings in Atwater v. City of Lago Vista, which upheld the authority of the police to make full custodial arrests for minor traffic offenses that are punishable only by a fine, like driving without a seat belt. In most such instances, the police will only arrest as a pretext to search (most commonly for drugs), which further opens the door to racial profiling, as Justice O'Connor pointed out in her dissent.
And, in another disappointing decision, the Court held in Saucier v. Katz that a police abuse victim can be denied any money damages if the officers who are sued are able to convince a judge that they reasonably believed in their right to use unreasonable force.
The Court remains far more concerned about claims of discrimination in free speech cases. In Legal Services Corp. v. Velazquez, the Court held that Congress had violated the principle of viewpoint neutrality by attempting to bar government-funded lawyers from challenging the constitutionality of existing welfare laws on behalf of their indigent clients. The decision is significant both in its own right, and because it places limits on the Court's 1991 ruling in Rust v. Sullivan that doctors employed by family planning clinics that receive government funding can be barred from abortion counseling or referrals.
In Good News Club v. Milford Central School District, the Court once again relied on the principle of viewpoint neutrality to hold that a private religious organization could not be denied access to public school facilities that were otherwise available to community groups. The Court's commitment to viewpoint neutrality prevailed notwithstanding the school district's understandable concern that elementary school students who receive religious instruction on public school grounds immediately after the school day are likely to perceive a message of official endorsement that is inconsistent with the Establishment Clause.
The Court's decision in Bartnicki v. Vopper involved still another clash between competing principles and led to another important First Amendment ruling. In a case involving an illegally intercepted cell phone conversation between two union negotiators, the Court explicitly held for the first time that the media cannot be held liable for publishing truthful information on a matter of public concern, even if that information was unlawfully obtained, so long as the media itself was not involved in unlawfully obtaining it.
In a much-anticipated campaign finance decision, the Court upheld federal limits on coordinated party expenditures in Federal Election Comm'n v. Colorado Republican Federal Campaign Committee, only three years after it had struck down limits on independent party expenditures in an earlier round of the same case. The ruling does not address the regulation of either soft money or issue advocacy because those issues were not presented in the case, although they are now before Congress. It is virtually certain, however, to encourage more intrusive government oversight of the ongoing interactions between a party and its candidate to determine if and how they are coordinating their spending.
Finally, in Lorillard Tobacco Company v. Reilly, the Court maintained its recent record of providing strong protection for commercial speech by holding that a series of regulations adopted by Massachusetts to limit tobacco advertising violated the First Amendment because they were too sweeping in their restrictions on speech. The Court also found that the restrictions on cigarette advertising were preempted by federal law.