Statement of Steven R. Shapiro
ACLU National Legal Director
WASHINGTON -- As the Supreme Court begins its first Term of the new millennium, two familiar themes already dominate the docket. One involves the recurring debate over states' rights and the limits of federal power, including limits on the power of the federal government to protect the civil rights of traditionally disadvantaged groups. The second involves the threat to individual rights posed by the war on drugs and the pressure it creates to dilute constitutional safeguards, particularly those designed to preserve personal privacy.
The relationship between the Fourth Amendment and drugs will be directly before the Court in two highly publicized cases scheduled for argument during the Court's first week. In Indianapolis v. Edmond (No. 99-1030), an ACLU case, the city has argued, with the support of the Justice Department, that the requirement of individualized suspicion does not apply to highway roadblocks designed to detect drugs. That argument was soundly rejected by the Seventh Circuit, in an opinion written by Chief Judge Posner.
By contrast, in Ferguson v. Charleston, S.C. (No. 99-936), the Fourth Circuit held that pregnant women who sought medical care in a city hospital could be subjected to drug testing without individualized suspicion, ostensibly as a health measure for the benefit of the fetus, even though the drug testing program was developed in coordination with law enforcement officials and positive drug tests were shared with local prosecutors. The implicit assumption in the Fourth Circuit opinion that women have a diminished expectation of privacy solely because of their pregnancy is precisely the sort of paternalistic stereotype that the Supreme Court has long since rejected.
Atwater v. Lago Vista (No. 99-1048), raises a different but related Fourth Amendment question. The issue presented is whether someone who is charged with a fine-only misdemeanor, which is to say someone who could not be jailed after conviction, can be arrested and jailed prior to conviction at the sole discretion of a police officer. Mrs. Atwater herself was arrested and handcuffed in front of her children for driving without a seat belt. Far more frequently, however, the impetus for an arrest will be to search for drugs. When that occurs, the power to search is no longer incident to arrest; rather, the arrest has become an excuse to engage in an otherwise unlawful search. Moreover, as we have sadly learned, granting the police such discretionary authority too often represents an open invitation to racial profiling.
Society's punitive and often irrational approach to drug policy is also at the core of Eastern Associated Coal Corp. v. United Mine Workers of America (No. 99-1038). The employee in that case had tested positive for marijuana and was fired from his job as a heavy equipment operator for a mining company. After the union filed a grievance, the employee's punishment was reduced to a suspension by an arbitrator, who noted that the employee's occasional, recreational use of marijuana had never affected his 17-year unblemished work record. The company has now challenged the arbitration decision on the theory that any punishment short of dismissal under these circumstances violates "public policy."
Last year, the Supreme Court relied on a reinvigorated notion of federalism to strike down key portions of two federal civil rights laws. In United States v. Morrison, the Court held that Congress had exceeded its authority by allowing the victims of gender-based violence to sue their attackers in federal court under the Violence Against Women Act. And, in Kimel v. Board of Regents, the Court held that state workers could not sue for age discrimination under federal law because the Eleventh Amendment provided state employers with an absolute immunity.
This year, in University of Alabama v. Garrett (No. 99-1240), the Court will consider whether the protections of the Americans with Disabilities Act can be applied against the states. It is a question of enormous significance, both because of the number of people covered by the ADA and because of the extensive record of past discrimination against people with disabilities by state officials. If that record is insufficient to establish that the statutory remedy is both "congruent" and "proportional" to the underlying constitutional right to equal protection of the laws, as the Supreme Court has required in its recent decisions interpreting Section 5 of the Fourteenth Amendment, the ability of Congress to insist that the states treat their citizens fairly will be seriously diminished on anything but the traditional grounds of race, religion and gender.
Two other cases on the Court's docket present less of a frontal attack on federal civil rights enforcement, but their consequences could nonetheless be severe and far-reaching. In Solid Waste Agency of Northern Cook County v. U.S. Army Corp of Engineers (No. 99-1178), the question is whether a series of proposed landfill sites located outside Chicago are properly subject to federal regulation because their "cumulative effect" on migratory birds will have a significant impact on interstate commerce. A negative answer to that question could, at a minimum, invite further challenges to federal civil rights laws that often rest, in part, on the Commerce Clause.
In Browner v. American Trucking Associations, Inc. (No. 99-1257), the Court has been asked to revive the excessive delegation doctrine, which was last prominently used more than a half-century ago to strike down early New Deal legislation. Although the dispute in Browner involves an industry attack on air pollution standards issued by the EPA under the Clean Air Act, the implementation of many civil rights laws is heavily dependent on administrative regulations that could also become embroiled in a new round of litigation depending on the outcome of Browner.
Three First Amendment cases on the Court's current early docket are worthy of note. In Bartnicki v. Vopper (No. 99-1678), a radio station has been sued for broadcasting the contents of an illegally wiretapped conversation between two union officials who were using a cell phone to discuss their negotiating strategy in an ongoing labor dispute with the city. There is no claim that the radio station had anything to do with the illegal wiretap itself. It is alleged that the station knew the tape it received had been unlawfully obtained. However, even assuming that fact, the Supreme Court has repeatedly declined to hold the press liable for publishing truthful information about a matter of public concern, and the Third Circuit refused to do so in this instance. The Justice Department has joined with the plaintiffs in Bartnicki in asking the Supreme Court to overrule this First Amendment privilege.
In LSC v. Velazquez (No. 99-603), the Justice Department has joined with the Legal Services Corporation in defending a federal rule that prohibits Legal Services lawyers from challenging the constitutionality of existing welfare laws on behalf of their welfare clients. This restriction was struck down by the Second Circuit as a form of impermissible viewpoint discrimination under the First Amendment. In so doing, the Second Circuit distinguished two recent Supreme Court decisions upholding conditional funding schemes, one involving Title X family planning clinics and the other involving NEA grant recipients. As the Second Circuit pointed out, the former did not suppress cricitism of the government and the latter expressly condemned viewpoint discrimination even in government funding programs.
In Cook v. Gralike (No. 99-929), the Eighth Circuit struck down a Missouri state constitutional amendment designed to punish congressional candidates who do not support term limits by printing a label next to their name on the ballot that reads: "Disregarded voters' instructions on term limits." Like every other court to review the issue, the Eighth Circuit ruled that this scarlet letter provision violated several fundamental First Amendment principles, including the rule against compelled speech and viewpoint discrimination. The Eighth Circuit decision is much less suprising than the fact that the Supreme Court has granted certiorari in what appears to be a relatively straightforward First Amendment case.
The issue of effective legal representation raised in Velazquez is before the Court in a different context in Glover v. United States (No. 99-8576). There, the Seventh Circuit remarkably held that a criminal defendant who was improperly sentenced to an additional six to 21 months in prison because of his trial counsel's mistake at sentencing was not entitled to a writ of habeas corpus because, in the
Seventh Circuit's view, the defendant had not suffered sufficient "prejudice" under the Supreme Court's habeas standards despite the undisputed sentencing error. The courts have always shown more lip service than genuine allegiance to the promise of effective assistance of counsel. Encouragingly, however, the Supreme Court last year upheld an ineffective assistance of counsel claim in a habeas case for the first time. This case presents a second opportunity to correct another obvious injustice.
Finally, the Supreme Court has an opportunity to recognize and correct its own mistake in judgment when it reviews the constitutionality of North Carolina's 12th Congressional District for the fourth time this decade in Hunt v. Cromartie (No. 99-1864). If nothing else, this ongoing litigation over a single congressional seat demonstrates that the redistricting standards announced in Shaw v. Reno have proved unworkable in practice and, as we begin another round of redistricting following the 2000 Census, have needlessly jeopardized the most successful method of minority political empowerment that this nation has yet devised.