Justices End Term with Victories for Gay Rights and Affirmative Action, But ACLU Says Supreme Court Remains Fundamentally Conservative in Outlook

June 26, 2003 12:00 am

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NEW YORK – Acknowledging the reality of an increasingly diverse society, the Supreme Court ended its 2002 Term this week with historic decisions supporting affirmative action and gay rights. But the Court’s conservative’s instincts were evident in rulings involving criminal defendants and immigrants that were low points for civil liberties, the American Civil Liberties Union said.

“”The affirmative action and gay rights decisions are tremendous victories for civil liberties,”” said Steven R. Shapiro, the ACLU’s national Legal Director. “”In the final analysis, however, they probably say less about the direction of the Court than the direction of the country.””

“”This Court remains fundamentally conservative in its judicial outlook,”” Shapiro said. “”But the country has changed in ways that the Court could not ignore. We are an increasingly diverse society and the Court, to its credit, recognized that America’s diversity represents a strength, not a weakness. Whatever debate there may be around the edges, few Americans want to return to a world where the government monitors what is going on in our bedrooms and our great public universities are reserved for white students.””

A full summary of the Term’s decisions is available online at /node/22356.

In ruling that public universities can take race into account in order to achieve a diverse student body so long as they do not resort to mechanical quotas, the Court endorsed the approach to affirmative action first taken by Justice Powell in his famous 1978 opinion in the Bakke case. And by holding that lesbians and gay men who engage in acts of sexual intimacy within the privacy of their own homes cannot be prosecuted as criminals, the Court finally repudiated its discredited 1986 decision in Bowers v. Hardwick.

Justice O’Connor wrote the Court’s defense of affirmative action in Grutter v. Bollinger, a challenge to admissions policies at the University of Michigan’s law school. Ending 25 years of uncertainty, the Court unequivocally held that public universities have a compelling interest in creating a diverse student body and that race may be treated as a “”plus”” factor in the admissions process. She stressed, as Justice Powell had before her, that every applicant must be assessed individually and that race alone should not be the determining factor between admission and rejection. However, she emphatically rejected the notion that the so-called percentage plans advocated by the Bush Administration are a preferred alternative to affirmative action precisely because they are designed to eliminate even the possibility of individualized review.

Applying a similar logic, the Court struck down the admissions program at Michigan’s undergraduate school in Gratz v. Bollinger, but only because it relied on a numerical point system that automatically awarded extra points to all under-represented minorities rather than individually assessing every application. Although the Court acknowledged that other applicants were also awarded extra points – for example, the children of alumni – the Court nonetheless concluded that the undergraduate program was too “”mechanical”” in its application to survive strict scrutiny. The ACLU joined with other civil rights groups to represent the interests of minority students in the Michigan litigation.

Some opponents of affirmative action have argued that the Court’s decision to uphold one affirmative action program and strike down another at the same university somehow suggests that the constitutionality of affirmative action is still unresolved. “”That position is simply unsustainable,”” Shapiro said. “”Reading the two decisions together, it is clear that the Court has broadly endorsed the principle of affirmative action in higher education and given public universities the road map they need on how to do it right.””

The Court’s landmark ruling in Lawrence v. Texas was also a civil rights triumph and a watershed in the history of gay rights in this country. Under the Texas sodomy statute that the Court has now declared unconstitutional, only same-sex couples faced imprisonment for private acts of sexual intimacy. In a broadly worded decision expounding on the meaning of personal liberty under the Constitution, the Court both expanded the privacy rights of all Americans and promoted the right of lesbians and gay men to equal treatment under the law. The ACLU filed a friend-of-the-court brief in Lawrence urging the Court to overrule Bowers, which had been an ACLU case. The ACLU also represents Matthew Limon, a Kansas teenager who was sentenced to 17 years in prison under the state sodomy law, and whose petition for certiorari is still pending before the Supreme Court.

“”For years, whenever we have sought equality, we’ve been answered both in courts of law and in the court of public opinion with the claim that we are not entitled to equality because our relationships make us criminals,”” said Matt Coles, Director of the ACLU’s Lesbian and Gay Rights Project. “”That argument, which has been a serious impediment in everything from child custody cases to debates about domestic partnership, is now a dead letter.””

The Court showed less sympathy for the rights of adults in United States v. American Library Association, a case in which the ACLU served as co-counsel, when it held that the federal government could insist that public libraries throughout the country install blocking software on their computers to censor sexually explicit speech as a condition of federal funding. The Court justified its decision by citing the government’s interest in protecting children from exposure to sexually inappropriate material, even though it is undisputed that the currently available programs erroneously block thousands of web pages that are not obscene either for children or adults, and that some material that might be “”harmful to minors”” is nonetheless constitutionally protected for adults.

Because the Court has never previously upheld an effort to regulate content on the Internet, its decision in ALA is significant. At the same time, the real world impact of the decision may be mitigated by the fact that Justices Kennedy and Breyer, who provided the critical swing votes, agreed to uphold the statute only on the assumption that libraries could and would turn off the blocking software whenever asked to do so by an adult patron. The trial record indicates that this may be much more difficult in practice. If so, a majority of the Court, including Justices Kennedy and Breyer, seems prepared to reconsider the constitutionality of the law.

Unfortunately, the Court’s deep concern for individualized decision making in the affirmative action context disappeared when it considered the rights of criminal defendants and immigrants.

In Demore v. Kim, an ACLU case, the Court ruled that even permanent residents could be subject to mandatory detention when facing deportation based on a prior criminal conviction, without any right to an individualized hearing to determine whether they were dangerous or a flight risk.

In Connecticut Department of Public Safety v. Doe, another ACLU case, the Court held that convicted sex offenders can be listed on a public registry posted on the Internet without any opportunity for individual offenders to prove that they are not a present danger to the community. Indeed, offenders are listed on the registry even if the state has tacitly agreed that they do not present a present danger by paroling them from prison. (In a related case from Alaska, Smith v. Doe, the Court also upheld that the decision to list sex offenders on a public registry that was established after their conviction did not violate the Ex Post Facto Clause because it did not constitute an additional punishment.)

Most disturbingly, in the companion cases of Ewing v. California and Lockyer v. Andrade (where the ACLU again served as co-counsel), the Court upheld California’s “”three-strikes”” law, finding nothing disproportionate in a sentence of 25 years without the possibility of parole for stealing three golf clubs in Ewing or 50 years without the possibility of parole for stealing videotapes worth approximately $150 in Andrade.

In contrast, in State Farm Mutual Automobile Insurance Co. v. Campbell, the Court concluded that a punitive damage award against a corporate defendant for $145 million was disproportionate to the $1 million of compensatory damages. “”In State Farm, the Court found a strong due process argument for a corporation,”” Shapiro said. “”The contrast between its findings for wealthy corporations and poor individuals is striking.””

Likewise, the Court showed only limited sympathy for criminal suspects in Chavez v. Martinez, when it ruled that the Fifth Amendment did not protect a suspect who was subject to compelled interrogation while receiving medical treatment for life-threatening wounds but never charged or tried. On the other hand, the Court did agree that even an uncharged suspect could not be subject to interrogation techniques, such as torture, that shock the conscience and therefore violate the Due Process Clause. And, in Sell v. United States, the Court made it clear that only in rare circumstances could the government render a nonviolent defendant charged with a nonviolent crime competent to stand trial by forcibly administering psychotropic medication.

It is perhaps a measure of how far this Court has taken its recent states’ rights revolution that a decision affirming the power of Congress to require state employers to comply with the federal Family and Medical Leave Act should qualify as big news. It is even more surprising that Chief Justice Rehnquist wrote the Court’s decision in Nevada Department of Human Resources v. Hibbs, permitting a state employee who had been improperly denied family leave to sue the state for damages under the FMLA.

As with the affirmative action and sodomy decisions, here again the Court seemed to take into account societal advances. Chief Justice Rehnquist’s opinion acknowledging that the leave policies of public as well as private employers are still too often based on the outmoded stereotype that women are more responsible for family care than men is some indication of the broad social consensus now supporting gender equality. By focusing on the fact that gender discrimination raises heightened concerns under the Equal Protection Clause, the Court was able to distinguish Hibbs from other recent decisions insulating states from damage claims under federal laws prohibiting disability discrimination and age discrimination.

Justice Thomas also wrote a rare opinion supporting a civil rights plaintiff in Desert Palace v. Costa, which upheld the right of employees to rely on circumstantial evidence to prove discrimination under Title VII in a so-called “”mixed motive”” case. The Court’s decision in Brown v. Legal Foundation of Washington had important civil rights consequences, as well. By upholding IOLTA accounts against a Takings Clause challenge, the Court preserved an important source of funding for legal services programs around the country.

In another positive development, the Court has begun to show increasing discomfort with the manner in which death sentences are imposed and reviewed. While the Court continues to uphold the vast majority of death sentences through the simple expedient of denying certiorari, it has started to place some limits on what it will now tolerate. In Miller-El v. Cockrell, the Court made it slightly easier for a death row inmate to pursue habeas relief when he alleges that the prosecutor engaged in the racially discriminatory use of peremptory challenges during jury selection. In Wiggins v. Smith, decided on the last day of the Term, the Court ruled that defense counsel in a capital case must adequately investigate available mitigating evidence that might persuade a jury to spare the defendant’s life.

The Court’s record on First Amendment cases is best described as mixed this year. The Internet censorship case was undoubtedly the biggest loss. In Virginia v. Black, the Court ruled that states could punish cross burning with an intent to intimidate but could not presume that every act of cross burning was intended to intimidate. In Eldred v. Ashcroft, the Court held that a 20-year extension of the copyright period did not violate either the Copyright Clause or the First Amendment. In Illinois v. Telemarketing Associates, the Court reaffirmed that states may not place a fixed limit on the fundraising expenses of nonprofit corporations but they may punish professional fundraisers for misleading solicitations on behalf of charitable groups. And, in Federal Election Comm’n v. Beaumont, the Court ruled that nonprofit advocacy organizations are bound by the general ban on corporate campaign contributions in a decision that seems to offer very few clues as to how the Court will resolve next year’s looming battle over campaign finance reform.

Finally, two of the Court’s most significant decisions this Term involved 9/11 cases that the Court declined to hear. The first involved the government’s claim of expanded authority under the USA PATRIOT Act to seek foreign intelligence wiretaps for criminal investigative purposes, even though foreign intelligence wiretaps do not need to comply with traditional Fourth Amendment safeguards. The government’s request was upheld by a special intelligence court that met in secret and only heard argument from the government’s lawyers. Because of the importance of the issues involved and the one-sided nature of the presentation, the ACLU sought permission to intervene in the Supreme Court for purposes of filing a petition for certiorari. That motion was denied in In re: Sealed Case of the Foreign Intelligence Surveillance Court of Review.

Later in the Term, the Court also denied the ACLU’s petition for certiorari in North Jersey Media v. Ashcroft despite a clear conflict between the Third Circuit and the Sixth Circuit on the constitutionality of secret deportation hearings. The Court may have chosen to deny certiorari because the government announced that it was reconsidering its policy, but we cannot know for sure.

“”It is imperative that we learn from our history,”” Shapiro said. “”From the Alien and Sedition Acts to the internment of the Japanese in World War II, we have always regretted the decision to sacrifice civil liberties in the name of national security. There are other cases in the pipeline, and the Court has a critical role to play in ensuring that we do not repeat those mistakes.””

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