ACLU Savors Supreme Court Victories, But Sees 'Uncertain' Future for Civil Liberties

June 24, 1999 12:00 am

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Thursday, June 24, 1999

WASHINGTON — The Supreme Court engaged in a historic debate on the meaning of federalism in a series of broad-ranging decisions issued at the close of its 1998 Term. In three separate cases, each decided by a 5-4 vote, the Court once again demonstrated its increasing willingness to curb federal power in favor of states’ rights.

“These decisions would have been unthinkable even a decade ago,” said Steven R. Shapiro, the ACLU’s National Legal Director. “Their long-term impact on civil rights and civil liberties is uncertain but troubling.”

On a more positive note, Shapiro said, the Court’s decisions earlier this Term affirmed a wide range of civil liberties. Among the civil liberties victories, the Justices struck down a Chicago anti-gang loitering ordinance and a California law limiting welfare benefits; they also upheld privacy rights in a police ride-along case from Maryland.

The trilogy of federalism cases included Alden v. Maine, where the Court ruled that the state government could not be sued in state court under the federal Fair Labor Standards Act because the state had not waived its sovereign immunity and Congress had no power to override it. Only three years ago, the Court had ruled that similar claims could not be brought in federal court because of the Eleventh Amendment. As a result, the state workers in Alden were left with no place to go in their effort to enforce federal law against their state employer.

The Court built on another recent states’ rights decision when it held, in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, that Congress had exceeded its authority under Section 5 of the Fourteenth Amendment by attempting to make the states liable for patent infringement. This is the second time in two years that the Court has narrowly construed Section 5, which is a principal constitutional source for many civil rights laws.

In its third federalism decision, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, the Court made it more difficult to find that a state has waived its sovereign immunity and agreed to be sued in federal court.

Several of the most important victories this term came in ACLU cases. “The Court’s record in more traditional civil rights cases was probably better than expected,” Shapiro said.

In Saenz v. Roe, the Court struck down a California law that paid lower welfare benefits to newcomers from another state. In the process, the Court reinvigorated the Privileges and Immunities Clause, which has the potential to become a significant new source of individual rights.

In Chicago v. Morales, the Court held that Chicago had given its police too much discretion when it allowed them to sweep off the streets anyone seen loitering with “no apparent purpose” in the company of at least one suspected gang member.

And, in Wilson v. Layne, the Court held that preserving the privacy of homeowners is more important that providing the police with photo opportunities. Thus, the police may not invite the press to accompany them into a home when they execute a search or arrest warrant.

The Court showed less sensitivity to constitutional values in Reno v. Arab-American Anti-Discrimination Committee. On the actual question briefed and argued by the parties, the Court held that an alien who is facing deportation cannot bring a selective prosecution claim to federal court until his deportation proceedings are completed. Far more disturbing, however, the Court also ruled — on a question neither side briefed nor argued — that the Constitution does not prohibit the government from singling out particular aliens for deportation because of their controversial political views. Accordingly, the claim may later be timely but it will never be valid.

The Court’s judicial activism also surfaced in Kolstad v. American Dental Association. After holding that a Title VII plaintiff can recover punitive damages without showing that the defendant’s conduct was “egregious,” the Court went on to decide, again without benefit of any briefing, that an employer who makes a “good faith” effort to comply with Title VII can never be held liable for punitive damages based on the acts of its agents.

The other major sex discrimination case on the Court’s docket was Davis v. Monroe. There, the Court ruled that school districts could be held liable under Title IX for student-to-student harassment if they were aware of the problem and reacted with “deliberate indifference” rather than trying to solve it. Justice O’Connor, who provided the crucial fifth vote and wrote the majority opinion, made clear in her response to Justice Kennedy’s dissent that the case, for her, was about equal opportunity and not about federalism.

This was also a big year for disability rights cases, where the Court’s record was decidedly mixed. In three cases, led by Sutton v. United Air Lines, the Court held that a person could be too disabled to work, at least in the eyes of an employer, but not disabled enough to invoke the anti-discrimination protections of the Americans with Disability Act.

By contrast, in Olmstead v. L.C., the Court held for the first time that unnecessary institutionalization is itself a form of discrimination against the mentally disabled and therefore prohibited by the ADA. At the same time, the Court held that states cannot be ordered to “fundamentally alter” a reasonable plan for treating the mentally disabled, even it if does not immediately produce the proper placement for each patient. It remains to be seen how these potentially conflicting principles will be reconciled in later cases.

The Court also had a mixed record on voting rights. In Dept. of Commerce v. U.S. House of Representatives, the Court held that the Census Act prohibits the use of statistical sampling for congressional apportionment even though it is widely agreed that minorities have historically been undercounted. On the other hand, in Hunt v. Cromartie, the Court not only showed a new recognition of the complex relationship between race and politics in electoral redistricting, but the opinion was written by Justice Thomas, who has long been skeptical about redistricting plans under the Voting Rights Act.

The Court’s death penalty decisions lacked any silver lining. In three different cases, the Court applied harmless error analysis or its equivalent to uphold a death sentence. For example, in Strickler v. Greene, the Court refused to grant a writ of habeas corpus because the defendant had shown only a “reasonable possibility,” rather than a “reasonable probability,” that exculpatory evidence improperly withheld by the prosecution would have affected the outcome of the trial. Also, in Jones v. United States, the Court affirmed its first death penalty under the 1994 federal Death Penalty Act.

On the question of Fourth Amendment law, the Court held that the police cannot search the car of someone they have merely ticketed for speeding, Knowles v. Iowa, but they can search the purse of a car’s passenger once the driver has been arrested, Wyoming v. Houghton. The Court also ruled, in Minnesota v. Carter, that guests in a house generally lack standing to object to an unconstitutional search unless they are staying overnight.

Finally, the Court decided two First Amendment cases outside the immigration context. In Buckley v. American Constitutional Law Foundation, the Court struck down three Colorado provisions intended to place limits on the use of paid circulators to gather petition signatures for a ballot initiative. In Greater New Orleans Broadcasting Association v. United States, the Court continued to provide enhanced protection for commercial speech by striking down a loophole-ridden federal statute that barred private casinos from advertising on radio or television.

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