This is the kind of year that makes Supreme Court watchers bleary-eyed. By the time the Court takes its annual summer recess at the end of June, it will have expressed its views on an extraordinary array of social and political issues. And, it will have confirmed once again the central and unique role that the Court plays in the American democratic process.
It is remarkable, for example, how many of the issues the presidential candidates are discussing are also before the Supreme Court. The list includes, among other hot-button items: campaign finance, abortion, school prayer, and states' rights.
The Court that will decide these issues is a conservative one by almost any measure. Yet, after years in which conservative commentators lashed out at what they perceived to be the "judicial activism" of liberal judges (who were never as active nor as liberal as their critics claimed), the current Supreme Court has quietly emerged as the single most activist court in recent memory. It has already struck down more acts of Congress than any Court since the early days of the New Deal far more, for example, than the Warren Court, which was habitually caricatured by the far right as the epitome of judicial activism and its pace is accelerating. Unlike the Warren Court, moreover, whose constitutional rulings were most often designed to protect individual rights, the current Court has been increasingly defined by its commitment to states' rights and the principles of federalism.
When we think of states' rights, it is often in the context of slavery and the Civil War. But the crucial question of how much autonomy the states should have on a range of issues, including civil rights, is still being debated and has great relevance today.
This year, as a result of that debate, the constitutional validity of civil rights statutes that would have been unquestioned even a few years ago has been called into doubt. Encouraged by that doubt, state governments now routinely defend themselves against civil rights claims by arguing that Congress lacked authority under the Constitution to require the states to comply with antidiscrimination laws.
That argument prevailed this past January in Kimel v. Florida Board of Regents, when the Supreme Court ruled that Florida could not be sued under federal law for age discrimination by current and former faculty and librarians from Florida State University and Florida International University. The plaintiffs, all of whom were over age 40, alleged that the state Board of Regents had refused to require the two state universities to allocate funds to provide previously agreed-upon market adjustments to the salaries of eligible university employees. They contended that the failure to allocate funds violated the Age Discrimination in Employment Act of 1967 (ADEA) and the Florida Civil Rights Act, because it had a disparate impact on the base pay of employees with a longer record of service, most of whom were older. The plaintiffs sought back pay, damages, and permanent salary adjustments.
The Court's ruling against the plaintiffs was not based on a judgment that they had been treated fairly. Rather, the question that the Justices asked was whether Congress could require the state of Florida to abide by the ADEA, and they concluded that it could not. In a curious twist, the Court justified its refusal to hear the plaintiffs' claim of age discrimination by stating that "Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age."
In this and other cases, the current Court has been less willing than its predecessors to defer to Congress¹s judgment as to whether particular legislation is, in fact, needed to protect individuals against the risk of unequal treatment by state officials. Unfortunately, it is an approach that threatens to subordinate individual rights to states' rights by allowing the states to escape accountability for their discriminatory behavior.
The potential consequences go far beyond the Age Discrimination in Employment Act. The Court has already ruled that states cannot be sued for violations of the federal Fair Labor Standards Act. It has asked the lower courts to reconsider whether states can be sued under the federal Equal Pay Act. It agreed to decide earlier this year whether states could be sued under the Americans with Disabilities Act, although the two cases it accepted for review were settled so that issue has been postponed for the moment. Other issues are on their way to the Supreme Court, including the constitutionality of the Family Medical Leave Act, which has been successfully challenged by several states on federalism grounds.
The stakes are high and the Court is closely divided. There is no doubt, however, that we are in the midst of an historic debate that is likely to have far-reaching significance for civil rights and civil liberties as we enter a new century.