Conservative court flexing its muscles; 5 justices champion constitutional shift

THE BALTIMORE SUN

WASHINGTON -- A conservative Supreme Court majority that seems increasingly eager to question long-standing assumptions about what the Constitution means is flexing its power regularly and without apology.

The notion that the court is becoming more of an active, not a restrained, user of its sometimes awesome constitutional authority seems to be widely held in the wake of the court term just ended.

The most visible single result of that term: a sharp reduction of the federal government's power, offset by a significant enhancement of the power and independence of the 50 states' governments.

Those who approve of what the court is doing say that it is about time.

"What you've got today is a court that is going back to those very first principles about limited government" at the federal level, says Roger Pilon, vice president for legal affairs of the conservative Cato Institute and an official of the Reagan administration.

"If you take that premise [of constitutionally limited government] to its logical conclusion," Pilon suggests, "much of what the federal government does today is unconstitutional. Is that radical? Absolutely. But it goes to the very root of the Constitution."

Pilon gives much of the credit for the eagerness to return to constitutional basics to Justice Clarence Thomas, who regularly challenges the court to rethink its constitutional precedents, however long they have been on the books. "The influence of Thomas is very important here; he has led the way," says the Cato Institute analyst.

More liberal observers have noticed the court's activism, though they do not share Pilon'senthusiasm for it. "By my count," says Walter Dellinger, a Washington lawyer and liberal constitutional law professor, "the court has invalidated 11 acts of Congress in the past three terms. That is quite a list. We have seen nothing like this since the 1930s."

Also, says Dellinger, a former Clinton administration official, "Not since the New Deal have we seen an executive branch get so little respect from the Supreme Court."

He adds gravely, "That is a result that may well inhibit the ability of the national government to respond to the next national crisis."

In significant ways, analysts of the court say, the constitutional debate being waged within the court is an echo of the high-stakes controversy that shook the nation in the late 1930s, when components of President Franklin Roosevelt's New Deal program to help the nation recover from the Depression were repeatedly struck down by a skeptical Supreme Court.

Roosevelt finally prevailed but only after threatening to remake the court by asking Congress to "pack" the court with six new justices added to the nine sitting.

New version of old debate

And, to some, the current debate appears to be a modern replay of the debate that agitated the new nation when the Constitution was being written two centuries ago, about how to divide power between the national and state governments in the wake of the failed Articles of Confederation -- a system of government in which Congress could do nothing without the agreement of the states.

The decisions that are emerging regularly divide the court 5-4. Such a close count usually means feelings are running deep. But the depth of feeling also shows in the length of the opinions on both sides of issues.

This week, in the term's most important ruling against federal power and for states' rights, the majority opinion went on for 51 pages. The dissent topped that: 58 pages. Each was a massive exploration of legal history as far back as the 17th century.

Although constitutional issues usually occupy no more than a fourth of the Supreme Court's time, with interpretations of federal statutes often the focus, it is on the Constitution that the current majority seems willing to be the most daring.

Cato scholar Pilon, acknowledging the current activism, insists it differs from the kind that produced so much conservative criticism of "judicial activism" in recent decades.

The courts under Chief Justices Earl Warren and Warren E. Burger (from 1953 to 1986) "often had an explicit political agenda that they dressed in constitutional trappings," he argues. "This court seems to be moving toward a constitutional agenda regardless of where the chips fall from a political perspective."

'Let the heavens fall'

Lawyer-professor Dellinger expresses the idea of activism more dramatically: "This is a confident court -- willing to let the heavens fall."

The court under Chief Justice William H. Rehnquist, says Dellinger, has come to embrace fully Rehnquist's deep devotion to the idea that the 50 states are strong, sovereign entities within the federal system.

Rehnquist's vision of the role and status of the states, Dellinger says, "has emerged as a really triumphant constitutional holding. He is responsible for one of the three of four major constitutional shifts in more than 200 years of the federal republic."

The only restraint on the court's enthusiasm for states' rights, he added, is the moderate conservatism of Justice Sandra Day O'Connor. She is a predictable member of the five-justice majority that has advanced states' rights. She has also been the leader of an identical 5-4 majority that, in recent years, has cut back sharply on affirmative action -- the use of race as a basis for deciding who benefits from government programs or activities.

The five are O'Connor, Rehnquist, Thomas and Justices Anthony M. Kennedy and Antonin Scalia. On the other side are the court's more liberal members: Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.

Kennedy and Souter squared off as the main researchers and writers of the long opinions in the most significant states' rights case of the term, a ruling barring private individuals from suing state governments in state courts to enforce federal laws.

When the five-justice majority that prevails on states' rights and race issues is broken up as the court moves on to other issues, it is often O'Connor who will join the court's more liberal members.

She did that to make a 5-4 majority in one of this term's most significant rulings on a social issue: a decision that school districts may be held legally responsible if students sexually harass each other on school property. That was a decision interpreting a federal statute; there was no constitutional issue at stake.

Overall, the court, while strongly conservative on many constitutional issues, did show frequent streaks of liberalism when civil rights were at stake.

The American Civil Liberties Union, in fact, praised the court for upholding "a wide range of civil liberties" in decisions this term. In particular, the ACLU pointed to decisions striking down a Chicago anti-gang loitering ordinance and a California law limiting welfare benefits to newcomers to the state. It also noted that the court upheld privacy rights when police let the news media accompany them on raids of private property.

Theodore B. Olson, a lawyer who often argues the conservative side of major issues in the court, said, "This was very much a civil libertarian court this term." He said he counted 10 cases, decided usually by large majorities, that found in favor of civil rights.

Major rulings

Some of the most significant rulings by the Supreme Court during the term just ended, showing votes and the name of the justice who wrote the main opinion:

School districts and colleges getting federal funds have a legal duty to deal with severe and continuing student sexual harassment of other students, if officials know about it. (5-4, O'Connor)

Congress has no power, using its general legislative authority, to allow individuals to sue a state in state court to enforce their rights under federal law. (5-4, Kennedy)

It is unconstitutional for a city to try to sweep criminal gangs off the streets by giving police wide discretion over who may remain in a public place. (6-3, Stevens)

Police act unconstitutionally in searching a car or truck for evidence of a crime, if they have stopped the vehicle only for a traffic violation. (9-0, Rehnquist)

But, if they have reason to believe the vehicle contains evidence of a crime, they are free to search the personal belongings of everyone in the vehicle, including passengers, as well as search the car. (6-3, Scalia)

It is unconstitutional for police or federal agents to take along the news media and other outsiders when a police operation enters a private home. (9-0, Rehnquist)

It is unconstitutional for a state to limit welfare for new residents to the amount they received in the state where they used to live. (7-2, Stevens)

A person who has a physical disability that can be corrected by medicines or devices is not disabled and is not protected by federal law from discrimination. (7-2, O'Connor)

It is illegal discrimination for a state to keep a mentally disabled person in a mental hospital when that person can be treated in a home-like community center. (6-3, Ginsburg)

Federal law requires school districts to pay for a full-time nurse needed by a disabled student while at school. (7-2, Stevens)

Congress acted unconstitutionally in banning all radio and TV advertising of privately owned gambling casinos. (9-0, Stevens)

Modern methods of statistical sampling cannot be used by the Census Bureau to estimate the nation's and the states' populations to decide how to divide up seats in the House of Representatives. (5-4, O'Connor)

Sun national staff

Pub Date: 6/26/99

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