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Supreme Court Wrap

June 28, 1999 at 12:00 AM EDT

TRANSCRIPT

JIM LEHRER: The U.S. Supreme Court term, and to Margaret Warner.

MARGARET WARNER: The Justices of the Supreme Court recessed for the summer last week after handing down 75 decisions. Among the most prominent were three opinions involving the states’ rights in relation to the federal government.

Several states have been sued by private groups and organization for violating federal laws governing overtime pay, patent infringement, and false advertising. In three 5-4 decisions handed down late in the term, the Court struck down those laws, saying state governments are sovereign entities that cannot be sued without their consent in those sorts of private lawsuits. Another case involving the rights of states addressed a California law limiting the welfare benefits of new residents. Under the law, new residents could only receive benefits equal to those in their former state.

The Justices didn’t agree, saying the law violated a citizen’s constitutional right to travel. Another major issue before the court involved the Americans With Disabilities Act, a 1990 anti-discrimination law. In separate cases, workers had sued companies after being denied jobs due to nearsightedness and high blood pressure, even though the conditions could be corrected medically.

The Supreme Court ruled that these correctable conditions weren’t covered under the ADA, which is aimed at people with disabilities that substantially limit daily life. Sexual harassment, a hot-button issue the previous court term, was the subject of one prominent case this year. A fifth grade girl said she was harassed by a male classmate. Her mother sued the school for not intervening. The court ruled that public schools and colleges who are found to be deliberately indifferent to sexual harassment can be required to pay damages to the victim. The Court also took on several constitutional cases, three involving the First Amendment. The most prominent dealt with casino advertising on radio and television.

A group of broadcasters in New Orleans challenged a 1934 federal law that bans gambling advertising on broadcast media. The Court struck down the statute, saying it unconstitutionally impedes truthful speech about lawful conduct. Other cases involved the Fourth Amendment, which protects against unreasonable search and seizure.

OFFICER: How you doing tonight, ma’am? I need to see your driver’s license and your registration.

MARGARET WARNER: One concerned a Wyoming car passenger whose purse was searched because police suspected the driver of carrying drugs. The court sided with the police officer, saying they may search vehicles, including passengers and their belongings, when they have probable cause to look for illegal items. A second search and seizure case focused on an Iowa driver whose car was searched after he was stopped for speeding.

This time the court ruled the search invalid, saying police have no constitutional reason to search a car stopped only to issue a traffic citation. The Justices also took up a local anti-loitering ordinance. A Chicago law authorized police to arrest suspected gang members and others lingering nearby with, as the law put it, no apparent purpose. The Justices rejected the law as too vague, saying it gave police too much discretion and put innocent people at risk of being arrested.

MARGARET WARNER: Four constitutional law professors assess this past Supreme Court term: Paul Campos of the University of Colorado, Michael Gerhardt of the College of William and Mary, Doug Kmiec of Pepperdine University, and Kathleen Sullivan of Stanford University. Michael Gerhardt, many commentators looking at this past term focused on these federalism or states rights case. How significant did you find them?

MICHAEL GERHARDT: I regard them as significant for a couple reasons. One is that these cases simply demonstrate where the new battleground is when it comes to state sovereignty. This is an area that typically has been regarded as relatively dry and uneventful. But I think what the significant thing about the case is that it tells the general public that in the future, the federal government’s going to have to be much more careful about how it crafts its laws and about how those laws impact on the state’s ability to spend their resources as they see fit.

MARGARET WARNER: Kathleen Sullivan, how did you see these cases? Do you think the court is trying to reshape the balance between the federal government and the states?

KATHLEEN SULLIVAN: Yes, Margaret, but I think we’ve heard a lot of hyperbole in the last few days from some of the commentary. It’s as if the court had rewritten history and the South had won the Civil War. I think these states rights cases are much more modest than that.

What the Court said was simply that private people bringing lawsuits for money damages can’t be freely allowed against the states in state or federal court without the state’s consent, but there are lots of other ways the court left intact for people who are aggrieved by states who deny them overtime or states that infringe their patents or trademarks. There are lots of other ways for people who suffer those injuries to still fight the states in court through injunction actions seeking court orders, through going to the federal government and asking the federal government to bring enforcement actions against the states.

And if the states were to become authoritarian or overreaching, Congress could come back with legislation designed to force the states to provide due process for people whose rights were violated. So I think we have to be careful not to overstate the states rights revolution the last few days. It was a modest tilt back to more balance toward the states in relation to the federal government, but we shouldn’t overstate it as a grand revolution.

MARGARET WARNER: Paul Campos, how do you see it, a grand revolution or a modest tilt back?

PAUL CAMPOS: I see it more as an case of an ideologically and legally fractured court that is producing a crazy quilt of 5-4 decisions, which in many cases are quite loosely reasoned and make it extremely difficult to predict what this court will do when even very similar cases appear in the future in the federal court system. I think what we’re seeing is a Court which is more and more prone to ad hoc, highly pragmatic kinds of decision-making that produces I think a sense of arbitrariness and unpredictability, which will be very frustrating, I think, to lawyers and legislators who are attempting to counsel clients and draft legislation based on the advice that it is – that they are getting from the Supreme Court.

MARGARET WARNER: But, I mean, on the states rights cases, did you see a clear direction on those? Do you think they’re important or just a modest sort of adjustment?

PAUL CAMPOS: I think it’s impossible to tell because you’re looking at 5-4 decisions where Justice O’Connor is clearly the swing vote. Like some of the earlier state rights decisions that this court has made over the last couple of years, these could be interpreted as signaling a major shift back towards important kinds of federalism and states rights concerns on the part of the court. On the other hand, I agree with Kathleen that they could also well be interpreted as a relatively minor blip on the radar screen that will go away as soon as another Justice – a new Justice is appointed who had doesn’t like the reasoning of these decisions.

MARGARET WARNER: Doug Kmiec, how do you interpret the states rights cases?

DOUGLAS KMIEC: Well, I don’t think they’re a minor blip on the screen. I think in the context of the Rehnquist Court, Federalism, the relationship between the federal and state government is very important. I think the court for some time has been trying to emphasize how we live with two sovereigns, both the federal and state government.

The federal government has important responsibilities, but the court has made plain that so do the states. And one of the things that’s a continuation here, Margaret, of past opinions is the Rehnquist Court has said before that state executives can’t be commandeered, neither can the legislature. And this kind of completes the triad — neither can the courts. But I think Kathleen’s point is also quite important. We have a court that is very closely balanced. It reflects the appointments of five different presidential administrations, and when you look at the overall work of the court, it is quite pragmatic.

You cannot say that this is just state rights carte blanche, because in other cases, California was not allowed to control its welfare expenditures; Alabama was not allowed to give preference to its domestic corporations. The court is being case by case, fact by fact, but it also has a clear preference for recognizing the structure of the Constitution as being one of a dual sovereignty.

MARGARET WARNER: All right. Michael Gerhardt, take this structure and fit in another staple of courts — of the court for the last few decades, which is individual rights or individual liberties. What did you see of significance there in terms of their rights vis-à-vis either the state or federal government?

MICHAEL GERHARDT: Well, as Doug just pointed out, I think one of the most important cases there, perhaps a surprising case, is the case involving the California welfare regulations. California had created two tiers of welfare recipients, new residents and old residents. And it used the clause that most scholars thought had been killed off by the Supreme Court quite a long time ago – the privileges clause.

The 14th Amendment provides that no state shall make any law or enforce any law that bridges the privileges of the citizens of the United States. And the critical question is what are those privileges. The Court said one thing at least, they seem to include within them a right to travel, the right — the ability to move between states without hindrance by the states.

MARGARET WARNER: So in other words, it’s a right that’s not enumerated in the Constitution, but they still recognize it?

MICHAEL GERHARDT: It’s enumerated in that rather broad language. The critical question is how do we interpret, or how does the court interpret that broad language? That’s a critical question that I’m sure everybody will be looking at in the future.

MARGARET WARNER: Kathleen Sullivan, where do you come down? Do you think that this court term was a case for celebration by civil libertarians — in that case and any others?

KATHLEEN SULLIVAN: Well, I agree with Doug Kmiec that there is quite a lot of balance in this court that makes it difficult to pigeon-hole it into simple right, left terms. And just to answer your question about individual rights cases, there were several important ones, some of which you mentioned in the introduction to this discussion.

One struck down a ban on loitering in Chicago streets with no apparent purpose, a kind of resurrection of some Warren Court principle that people are allowed to associate in public without vague prescriptions by the government. The other First Amendment cases worth noting would include the case that struck down the ban on gambling advertising, and a case that struck down some limits on the way that petitions are circulated to get items on the ballot in Colorado.

So we did see a fair number of civil liberties cases coming out of the court, including also on the criminal defense side a right against having the media ride along into your house when the police come to arrest you. And the case that you mentioned, about how we have a right to — not to have our cars searched on an automatic pretext every time we get a speeding ticket. These are a series of important individual liberties cases coming from this court that should keep anyone saying it’s a right-wing juggernaut.

MARGARET WARNER: Paul Campos, do you see any pattern in the individual liberties cases?

PAUL CAMPOS: No. I don’t think there is a pattern in the cases. I think what you see is — for instance, I think the case of — that involved the finding that you couldn’t be searched if you were simply being give an citation is paired nicely with the Wyoming case in which a passenger in a car can be searched for drugs, even though the probable cause initially attached only to the driver of the car who happened to have a couple needles sticking out of the shirt pocket.

MARGARET WARNER: Kind of a tip-off, I guess we’d say.

PAUL CAMPOS: If they were about the driver, that’s right, but a strong civil libertarian I think would very much disagree with the outcome in that case as he or should would like the outcome in the Iowa case. So, I don’t think – and there are several other cases can be paired in this way during the term. I don’t think there’s a strong tendency on this court’s part towards any particular vision of civil liberties, whether of a highly libertarian or of a more conservative communitarian variety.

MARGARET WARNER: Doug Kmiec, your view of the individual liberties cases.

DOUGLAS KMIEC: Well, there are some notable things. One has already been mentioned, the privileges and immunities clause, which Michael Gerhardt mentioned, has been revived. It was dead for 130 years.

That was an essential guarantee of individual rights in the Constitution. Justice Thomas makes it very plain in his separate opinion in the California case that he wants to carefully examine the history of that to make sure that it doesn’t become a fount of non-textual rights but that it, in fact, it protects the kinds of liberties that the Framers had in mind. But Margaret, there’s another type of individual liberties case, which is our statutory cases. We had a Title VII case, which was very important from the standpoint of saying that punitive damages were available for something less than egregious contact — conduct the first time that the 1991 Civil Rights Act was interpreted.

And we had a pair of Title IX cases, one which expansively or expanded Title IV, the one you mentioned in the setup piece, which said schools could be liable for student-on-student harassment, especially where the school was deliberately indifferent. But then we had another Title IX case where the NCAA, which everybody knows calls all the shots in college and university life with regard to athletics was not covered and required to observe the protections against gender discrimination because it only benefited from federal funds. It didn’t receive them directly. So we have again an attitude of pragmatism, case by case.

MARGARET WARNER: Michael Gerhardt, do you agree with Paul Campos and some of your other colleagues here that there is no discernible pattern on this court or no kind of underlying ideological drift?

MICHAEL GERHARDT: I think they’re absolutely correct. I think this is not a court that can be easily pigeonholed. Arguably the most liberal Justice on the Court is John Paul Stevens, a moderate Republican appointed by Gerald Ford. And so whatever gap there is, whatever ground there is between him and whoever occupies the far right in this court, perhaps Justices Scalia and Thomas, is not that great in terms of distance. So this is a court I think that’s largely divided by pragmatic viewpoints.

MARGARET WARNER: Kathleen Sullivan, and all of you before we go, we’re heading into another presidential election. Do you think there should be a Supreme Court issue in this election? I’m not asking do you predict. I’m really asking in an ideal world, do you think there’s something involving the court that should be put before the voters?

KATHLEEN SULLIVAN: In an ideal world, we would pay a lot of attention to the court and the voters would too because it’s one of the most important part of government. It’s a co-equal branch with the President and Congress, to whom we pay much more attention.

But I think what will happen is that it will only matter if there’s a Democratic President elected because he would have the opportunity to shift the balance of power on 5-4 votes that are now running in a more conservative direct direction, such as on states rights, or the relationship of church and state. The biggest case already taken for next year in the Supreme Court involves the question of whether the federal government can send computer equipment and Internet connections into religious schools.

If a Democratic President appointed a replacement for one of the current conservative majority, that would shift the balance of power on the court. But if it were Chief Justice Rehnquist who retired on a Republican watch, that wouldn’t change the balance of power. So I don’t mean to just talk about it in horse race terms. I’m just trying to suggest that it will be more of an issue if a Democratic President is elected than if a Republican President is.

MARGARET WARNER: Doug Kmiec, do you, is there something in the campaign that you think should be addressed as an issue?

DOUGLAS KMIEC: Well, you know, I think it is going to with an issue. The court is so closely divided, the candidates cannot help by talk about it. And one of the things that was mentioned earlier is cases where –is the court in touch with the people? We had a case dealing with an anti-gang ordinance, the Morales case.

I think one could say that maybe the Justices here don’t live in bad neighborhoods, because the city of Chicago tried to articulate an ordinance that deals with the problem that really terrorizes people in their homes. So Margaret, I think the issue for political candidates is: Are they capable of identifying people of legal competence who are in touch with the r culture? And that’s going to be an important issue in 2000.

MARGARET WARNER: Paul Campos?

PAUL CAMPOS: I think one issue which needs to be mooted in the presidential campaign vis-à-vis the Supreme Court is affirmative action. The Supreme Court hasn’t decided a really major affirmative action case in a while. And right now we have a series of conflicting decisions in the appellate courts of great importance on this issue in terms of both hiring and educational policy and all the facets of life that affirmative action touch on. And I think it’s necessary or at least it would be a good thing for the candidates to grapple with the question of what kind of role they see the federal courts, and especially the Supreme Court, having on this issue.

MARGARET WARNER: All right. Let me get Michael Gerhardt, briefly, your thought on this.

MICHAEL GERHARDT: Except for President Carter, every President in recent history has had a chance to influence the direction of the court. So, I think the next election will have an impact on the direction of the Court. We don’t know who’s going to retire, but it’s safe to say, whoever gets replaced, that that replacement will have influence on the future of the Court’s jurisprudence.

MARGARET WARNER: All right. Thank you all four very much.