Justices, civil rights laws appear on collision course; Anti-federal stance unlikely to change, as new term opens

THE BALTIMORE SUN

WASHINGTON -- The Supreme Court begins a new term Monday, with federal civil rights laws likely to collide repeatedly with the majority justices' hardening views against wide-ranging laws passed by Congress.

For eight terms -- the entire time that the present majority of five conservative justices has served together -- those five have combined to cast doubt on or strike down broad federal statutes.

But, with one exception, the laws that have fallen or become sharply narrowed were not designed to protect civil rights. The exception -- a law intended to protect religious liberty -- was also nullified, leaving at least the impression that civil rights laws also are vulnerable.

The trend is causing a rearrangement of governmental power, curbing what Congress can do while enhancing the powers that states may exercise and insulating them from federal control.

This rearrangement is inspired by the states' rights views of Chief Justice William H. Rehnquist, who regularly has the support of Justices Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

On the other side, reluctant to second-guess Congress, are Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.

The lineups appear unlikely to change in the court's new term, though the status of Justice Ginsburg is uncertain, as she recovers from surgery last month for colon cancer.

In the new term, the majority's view toward Congress' powers will be tested more than in the past in constitutional disputes over civil rights laws, especially those that establish new rights rather than only strengthen the enforcement of existing rights.

Civil rights advocates appear pessimistic about the prospects.

"I'm not at all certain," said Steven R. Shapiro, legal director of the American Civil Liberties Union, that the court will be more receptive to civil rights legislation than to the other types of federal laws it has been striking down.

O'Connor may be the key

The key to the outcomes in rights cases, Shapiro said, "comes down to Justice O'Connor," who usually casts the court's pivotal vote on closely divided cases.

He expressed hope that she, among the conservative five, would be sympathetic to congressional action to bolster civil rights, especially women's rights.

By contrast, groups such as the conservative Cato Institute say the court is overdue in restoring states' power and curtailing Congress' sweeping social legislation.

The court, shaping its docket for the new term, has agreed to rule on the constitutionality of three laws creating new civil rights, and it has others awaiting its attention. Two of the three laws could affect women's rights. They are:

A 1994 law that seeks to protect women against sexual violence by permitting damages lawsuits against attackers.

A 1994 law to enhance the privacy of individuals by barring states from releasing personal information in motor vehicle records. Women's rights groups say that access to such information has led to the stalking of women who seek abortions and doctors who perform them.

A 1967 law barring age discrimination in the workplace.

All three of these laws have been struck down by federal appeals courts, which have taken clues from the Supreme Court's recent trend to revive the protection of "federalism." Under that doctrine, power is to be shared between national and state governments, with the states treated more like equals.

Emboldened by that revival, states have moved aggressively to challenge other federal laws on the theory that they, too, intrude on states' prerogatives -- laws ranging from the Equal Pay Act to the Americans with Disabilities Act to the Individuals with Disabilities Education Act.

"For many years, the Supreme Court ignored the importance of federalism," said Ronald D. Rotunda, a law professor at the University of Illinois. "But, in the last few years, the court appears to be embarking on a journey to revitalize its protections" -- specifically, the protections that federalism gives to states.

"It is too early to tell how this story will end," he said.

Roger Pilon, vice president for legal affairs of the Cato Institute, said, "The court is serious about reviving federalism and limiting the power of Congress. In 1992, 1995, 1997 and on its final day of the term last June, the court reasserted federalism principles by striking down acts of Congress that were unauthorized by the Constitution."

In the past eight terms, the court has issued nine rulings to buttress state sovereignty. In eight of those, it struck down or narrowly restricted the federal laws at issue.

Charles J. Cooper, a former Rehnquist law clerk and now a Washington lawyer who argues cases before the court, said that "the rediscovery of constitutional limits on the reach of federal power" is the "most notable" development in the work of the court under Rehnquist.

Eager for battle

But it is not the only area in which the court's decisions are likely to be controversial. The court has seemed eager this year to take on some of the most sensitive legal issues of the day.

One is a test case over the Clinton administration's claim that it has the authority to limit the marketing of cigarettes and chewing tobacco, with the intent of reducing teen-agers' use of those items.

The court, facing a test of states' power to limit political campaign donations, is being pulled in two directions. Some advocates want it to allow more curbs on campaign financing; others want it to strike down all such limits.

Also on the docket

The court has committed itself to review these topics as well: The right of bar and nightclub performers to dance nude.

Grandparents' right to have visits with their grandchildren, even if parents object.

Patients' right to sue doctors and HMOs for cutting back on medical care to save the HMO money.

The right of students at state colleges and universities to veto the use of some of their activity fees to support student groups whose views they oppose.

The legality of lending computers and other teaching materials, bought with public funds, to parochial schools.

The right of injured drivers or passengers to sue auto manufacturers over accidents in cars that were not equipped with air bags.

Police authority to stop and frisk an individual because that person ran away upon seeing the police approach.

The power of state and local government to set up "buffer zones" around abortion clinics to keep protesters at a distance.

Congress' authority to order cable TV companies to ensure viewers do not inadvertently see sexually explicit images that "bleed" into other programs.

The duty of judges to give juries in murder cases clear-cut guidance to avoid confusion about their option to choose between a death penalty and life in prison.

States' power to prevent oil spills by controlling the operation of tankers in their waters.

Pub Date: 10/02/99

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