Ginsburg may help Supreme Court define itself as term begins today


WASHINGTON -- The Supreme Court, in search of a new judicial identity as its fourth new member in five years takes a seat, sets off today on a broad and potentially historic review of deep conflicts over civil rights.

In a sense, its new term already is historic: For the first time there will be two women on the bench. Justice Ruth Bader Ginsburg, who joined the court in August, is already at work behind the scenes.

No longer will Justice Sandra Day O'Connor, a member since 1981, be the lone female ever to sit among "the brethren."

"The thing I am most looking forward to is when someone in the audience looks up at the bench and says, 'Which one is Justice O'Connor?' " says Maureen Mahoney, a seasoned advocate before the court,

But Justice Ginsburg's potential impact is something that few legal analysts are willing to predict with confidence. They say they have no real idea what influence she will have on the court and whether it will be a different institution because of her. Part of that, they say, is due to the perception that the court has no clear-cut identity: It is not obvious what kind of institution she is joining.

Steven R. Shapiro, chief of the American Civil Liberties Union's Supreme Court activity, says, "This is a court that lacks, in many ways, a commanding ideology; it lacks, in many ways, a personality. It is a court primarily marked by shifting ideological coalitions."

Stuart M. Gerson, a former top official in President George Bush's Justice Department, echoes the thought: "This is a court that has no identity or coherent group dynamic."

Mixed signals

Justice Ginsburg herself has sent mixed signals, through her public career, about what kind of justice she will be. She made a national reputation as a pioneering ACLU lawyer working for equality of the sexes, seeking to expand constitutional protection of women. But as a federal appeals court judge for 13 years, she has been cautious, adamantly refusing to be as experimental as her liberal colleagues, voting comfortably with more conservative colleagues.

"She is a moderate in tone, cautious in approach," says the ACLU's Mr. Shapiro.

Former Bush administration aide Mr. Gerson sees her as a scholarly judge who will emerge as a "careful constitutional evolutionist." He and others suggested she will be comfortable working with Justice David H. Souter as he emerges further as a leader of the court's moderate center -- a bloc that also includes Justice O'Connor and, sometimes, Justice Anthony M. Kennedy.

Justice Ginsburg's views on civil rights issues, which so far dominate the significant new cases up this term, will be tested right away. As the court starts hearing cases, the justices will plunge immediately into heavy controversy over civil rights.

Two of the first day's three cases involve voting rights issues, and they may show whether the court will cut back on legal efforts to increase the political strength of blacks and other minority groups.

It sent a signal in that direction in a decision at the close of the last term in a North Carolina case. In that ruling, the court began raising serious constitutional doubts about race-based redistricting plans; such plans exist for scores of legislative districts across the country.

Mark Tushnet, a Georgetown University law professor, says the court has "set out on a course [on political rights for minority groups] without knowing where it's going to end up," a course that he speculates might actually end with nullifying the federal Voting Rights Act itself.

In a series of pre-term briefings by scholars and lawyers here, the potential threat from the court to minority rights in the political arena was mentioned over and over again.

Voting rights in peril?

For example, Laughlin McDonald, an ACLU leader based in Atlanta and a specialist on voting rights disputes, says, "Our concern is that we are really in the midst of a substantial backlash in the area of voting rights," and last term's decision "cast shadows across" all new voting rights cases reaching the court. He said lower courts already have begun to be more skeptical about race-based election law in the wake of the latest court ruling.

But voting rights is but one part of the court's rights caseload in the new term. By coincidence, some of the cases seem tailored to serve as tests of Justice Ginsburg's current views on women's rights.

As a lawyer, Ms. Ginsburg was involved in several cases over the rights of women to serve on juries; she won one such case before the Supreme Court itself. Now, a Georgia case tests the constitutionality of lawyers' efforts to assure that fewer women, or men, get seated on juries. That, some analysts say, may lead the court to spell out a new constitutional standard for sex equality.

Another case will give Justice Ginsburg her first opportunity to act as a judge on a sexual harassment dispute: a Tennessee case that may produce a standard on whether sexual remarks and gestures in a factory or office create an illegally "hostile working environment."

Civil rights groups are counting heavily upon the new justice as a strong vote against workplace bias. She has spoken often about being turned down for professional jobs after law school because she was a woman, a wife and a mother.

"She understands in her gut what sex discrimination means," the ACLU's Mr. Shapiro remarked.

The abortion issue

Abortion disputes, an annual staple of the court's work but an area of the law on which Justice Ginsburg has never voted as a judge, are due back in a case involving the use of federal law to protect abortion clinics from blockades. The court in January barred the use of a civil rights law for that purpose, but the new case involves a different law that carries heavier financial penalties.

Later in the term, the court will be asked to act on new state efforts to grant parents veto power over teen-agers' abortions -- an issue on which the court has taken differing positions over the years. It is not clear what a current majority would do on that question.

Although many of Justice Ginsburg's supporters in women's rights groups expect her to be a strong voice for a woman's right to abortion, she has criticized the court's basic 1973 ruling in Roe vs. Wade. She has contended that the court went too far too fast to create such a right, stirring up more controversy than necessary.

Roe's author and the court's most ardent supporter of abortion rights, Justice Harry A. Blackmun, becomes the court's most senior justice this term following the June retirement of Justice Byron R. White. Justice Blackmun has given repeated indications in private, to friends and associates, that this is probably his last term on the court.

If Justice Blackmun does retire next spring or summer, it would mean only the second opening for a Democratic president to fill in the past quarter-century.

Besides beginning to have some influence on the court through the Ginsburg nomination, the Clinton administration has begun shifting away from Bush administration legal positions in a few areas, including protection of workers against job bias and protection of abortion clinics against blockades.

Although it appears that Mr. Clinton chose Justice Ginsburg with the expectation that she would be more moderate than liberal, Frank Askin, the ACLU's general counsel and a Rutgers law professor, expects her to be liberal in a number of areas.

"As a court of appeals judge, she saw an ethical obligation to implement and enforce the law as her superiors ordered her to do. I believe she will be freed of that, to a large extent, on the Supreme Court."


The Supreme Court opens its new term with a lighter-than-usual caseload, but there are major controversies among the cases it has agreed to decide. Here are the most significant issues on its decision docket so far:


Abortion clinics nationwide, looking for federal help to stave off "Operation Rescue" blockades, are asking the court to let them use a tough 1970 anti-racketeering law that could lead to heavy damages verdicts against anti-abortion forces. A lower court rejected that plea.


A Tennessee woman, backed by civil rights groups, is urging the fTC justices to make it easier for workers who are the target of smutty language and gestures on the job to sue for sexual harassment. A lower court said the law requires proof that the harassment caused psychological injury and actually interfered with work.

In another case, minority and female workers want the court to let them use the 1991 civil rights law's broad new protection against workplace bias to challenge discrimination that happened before the law was passed. Lower courts are split on the issue.


In a Georgia paternity case, the court faces the issue of whether it is unconstitutional sex discrimination for lawyers to exclude potential jurors from serving solely because of their sex. A state court said that was not forbidden by the Constitution. In the past, the Supreme Court has barred lawyers from excluding jurors based on their race.


Amid clear signs that the court is now less willing to allow race to be used as a factor in drawing up new legislative districts, it will act on cases testing the power of courts to create plans to give maximum voting power to minorities or plans that force local governments to change their basic structure in order to enhance minorities' political strength. The constitutional fate of the federal Voting Rights Act may be at stake.


In a case appealed by the rap music group 2 Live Crew, the court will decide whether it is illegal to make and sell a song that is a parody of an existing copyrighted song. At issue is a Roy Orbison tune, "Oh, Pretty Woman," tartly ridiculed in a 2 Live Crew imitation. Entertainers who make heavy use of music parody, such as TV and nightclub comedian Mark Russell, are joining in asking the court for legal protection that a lower court denied to parodies.


In the most important legal case in the quarter-century history of cable television, the court will spell out how much freedom cable operators have to choose their own programs, free of government control. At issue is a 1992 federal law requiring cable TV to rebroadcast local over-the-air TV programs. A lower court upheld that law.

Copyright © 2021, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad