Preview of 1995 Court Term

Steven Shapiro, ACLU Legal Director

September 27, 1995

Introduction

The disappointing end of last year’s Supreme Court Term is a cause for anxiety as this year’s Term begins.

Following its recent pattern, the Court’s opening docket this year is relatively small, with only 39 carryover cases. But, in contrast to last year, the docket already includes a number of significant cases involving voting rights, gay rights, and prisoners’ rights, among other things.

There is little doubt that the Court remains closely divided on these issues. Based on last year’s record, it also appears to be more ideologically polarized than many had thought. By the conclusion of this year’s Term, we should have a much better sense of whether the Court’s renewed enchantment with state’s rights and federalism will once again be used to promote an anti-civil rights and civil liberties agenda, as it has so often in the past.

The stakes are high. Echoing the anti-Washington fervor that is now so prevalent in the political arena, some of last year’s more expansive opinions called into question the very basis of the federal government’s authority to address the persistent inequalities that still plague our society.

What remains to be seen is whether the Court is heading over the edge or will pull back from the brink. For example:

• Did last year’s 5-4 decision in United States v. Lopez striking down the Gun Free School Zones Act under the Commerce Clause merely reflect the Court’s reaction to bad legislative draftsmanship or does it present a more serious threat to the federal government’s legislative authority?

• Did the Court’s 5-4 decision in Missouri v. Jenkins reflect the Court’s reaction to what it perceived as a particularly expansive school desegregation remedy or did it signal a historic retreat from the principles of Brown v. Board of Education, as Justice Thomas has so passionately advocated?

• Did the Court’s 5-4 decision in Adarand v. Pena mortally wound federal affirmative action efforts or did it simply require that such efforts be crafted with more care, as Justice O’Connor has suggested?

• Did the Court’s 5-4 decision to invalidate Georgia’s legislative redistricting plan in Miller v. Johnson reflect concern about the idiosyncracies of that particular plan or will it lead to the unraveling of the historic political gains that minorities have achieved under the Voting Rights Act in the last three decades?

We will not need to wait long for the answer to this last question as the Court tackles two new redistricting cases from North Carolina and Texas. The fact that the Court granted review in these cases only days after issuing its decision in Miller v. Johnson demonstrates, at a minimum, the Court’s recognition that its pronouncements in this area have created more confusion than clarity. The Texas case, in particular, will force the Court to consider whether political partisanship is a more acceptable motive for legislative redistricting than racial fairness.

The issue of fairness is also at the heart of the legal battle over the constitutionality of Colorado’s Amendment 2 in Romer v. Evans, a case in which the ACLU is co-counsel. The state has tried very hard to defend Amendment 2, which prevents any branch of state or local government in Colorado from including gays and lesbians within the scope of its antidiscrimination laws, by invoking the mantra of federalism. Federalism, however, is not an excuse for discrimination. And, beneath all the legal jargon, the basic question in Romer is really quite simple. Can the state create two sets of political rules: one that applies to all residents of Colorado seeking political change except gays and lesbians and one — far more onerous — that applies only to gays and lesbians? As the Colorado Supreme Court unequivocally held, the answer to that question must surely be no.

Arizona has similarly raised the banner of federalism in Lewis v. Carey, another ACLU case that will be argued this Term. The state does not directly challenge the proposition that prisoners are entitled to access to the courts and that access to the courts requires access to legal resources. Instead, the state challenges the propriety of a federal court order passed on the notion that access to an English language library is not sufficient for prisoners who do not speak English and cannot read. Once again, therefore, the case has much less to do with federalism than with whether our constitutional rights will have meaning in the real world or be reduced to slogans.

In addition, the ACLU is participating as a friend-of-the-court in three important First Amendment cases that have already been accepted for review. In United States v. Chesapeake and Potomac Telephone Co., the Clinton Administration is defending a federal statute that bars the regional telephone companies from entering the cable business even though the Administration has publicly supported efforts in Congress to repeal the same statutory provision as anticompetitive. As we begin to formulate the rules for a new information age, it is the ACLU’s position that the goals of the First Amendment are generally enhanced by increasing competition in the marketplace of ideas and not by inhibiting it.

In Heiser v. Umbehr, the Court has been asked to determine the First Amendment rights of independent contractors who enter into a business relationship with the government that is later terminated because the government disapproves of the contractor’s speech. Although the Tenth Circuit ruled in favor of the contractor in this case, several other courts have held that independent contractors have no First Amendment claim under these circumstances. It is a question that has become increasingly important as the move toward “privatization” gains momentum around the country. The ACLU’s position is that the government may not leverage its economic power to stifle public debate.

Finally, in 44 Liquormart, Inc. V. Rhode Island, the issue is whether a state may seek to curtail liquor consumption by banning even truthful and non-misleading price advertising. Here, as elsewhere, the ACLU’s position is that the government may not seek to influence behavior by paternalistically controlling access to information. It is both a perennial First Amendment question and a timely one, given current proposals to limit tobacco advertising.

The result in these and other cases may well depend on whether the Court’s center holds, or folds, during the upcoming Term.