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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.
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