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Supreme Court shows signs of activist future

Published Oct. 4, 2005

The Supreme Court, apparently taking its cue from the 1994 elections, ended its term having become a participant in defining the future role of government.

The court, which already had drifted to the right, underscored that shift with decisions on contentious social issues from student life to politics and religion.

In the 1994-95 term that ended Thursday, the court's conservatives, with just a 5-to-4 majority in a string of rulings, cut back historic civil-rights protections and lowered the traditional wall of separation between church and state.

The court also upheld drug testing of student-athletes and ruled that Congress exceeded its legal authority by banning guns near schools, a decision that may lead to the return of more power to the states on that issue.

Roger Pilon, who runs the Center for Constitutional Studies at the libertarian Cato Institute, said the court, no less than the political branches, is finally addressing the fundamental question at the heart of government.

"Did we authorize all this government, and is it legitimate under a Constitution that created a national government of enumerated and thus limited powers?" asked Pilon.

Georgetown University law professor Louis Michael Seidman said the court appeared to take note of the election in which Republicans regained compete control of Congress from the Democrats for the first time since 1954.

"Ideas thought to have been crackpot a year ago now are in the mainstream," he said.

Seidman and other legal experts cautioned that it remains to be seen if the court has launched a conservative revolution that will cast aside many liberal precedents from the past 50 years.

"A lot turns on future appointees and the 1996 election," Seidman said.

He and the rest of the nation shouldn't have long to wait.

The justices already have said they will tackle several issues next term that concern the limits of federal power.

The court's conservative faction consists of Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas and the slightly more moderate Anthony M. Kennedy and Sandra Day O'Connor. The more liberal wing is made up of Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Here's a look at other decisions in the term that ended Thursday:

Civil rights

Thirty years after the Voting Rights Act sought to fulfill the promise of the post-Civil War constitutional amendments by opening the political process to black voters, a bitterly split Supreme Court announced that political districting plans that make race a "predominant force" will be presumed unconstitutional.

By a 5-4 vote Thursday, the same conservative coalition that struck down the gun-free-schools law also struck down Georgia's black-majority 11th Congressional District.

Civil rights activists immediately attacked the ruling, with the NAACP's Wade Henderson calling it "the first step in the resegregation of America."

The one certainty is that the decision is bound to swamp the federal courts with legal challenges. "Workfare for lawyers and demographers," said Republican remap expert Ben Ginsberg.

Within hours of the ruling, the justices announced the Georgia case will not be their last word on voting rights: The high court will take up redistricting cases from Texas and North Carolina next term.

On other questions of how much government effort is enough when it comes to racial progress, the conservatives held sway on 5-4 votes holding that:

The federal government can continue to address lingering effects of race discrimination through affirmative action in federal contracting but must justify any consideration of race under the same strict rules that apply to state and local government plans.

Judges overseeing desegregation plans shouldn't make achievement test scores the measure of whether public schools once segregated by law are providing students with equal educational opportunity.

Term limits

In ruling that congressional term limits can be achieved only through constitutional amendment, the Supreme Court ended any hope of shortcutting the amendment process, which requires approval of two-thirds of both houses of Congress and at least 38 states.

The 5-4 ruling striking down a term limits initiative approved by Arkansas voters, and similar provisions adopted by 22 other states, shifts the burden to Capitol Hill.

First Amendment

For the first time in all its years of wrestling with church-state issues, the Supreme Court announced it is willing to tolerate some government financial support of religious groups and activities.

On a 5-4 vote, the justices said that a state university that funds extracurricular activities including student publications cannot refuse to subsidize a student-run Christian magazine without running afoul of the student's First Amendment free-speech guarantees. Any effect on the First Amendment's prohibition on "an establishment of religion" is merely "incidental," Kennedy wrote for the conservatives' majority.

Also on the free-speech front, the court declared that the identity of an anonymous political pamphleteer is entitled to protection against state-mandated disclosure and that a private parade's sponsors can exclude those whose message they don't want.

The court also ruled that:

States and cities that open public property to unattended displays cannot shut out a Ku Klux Klan cross on the theory that a passer-by might think it was government endorsement of religion.

Congress went too far in forbidding rank-and-file federal workers from being paid for outside speeches and writings.

Amtrak and other corporations spun off to do government work can be sued for constitutional rights violations in the case of an artist whose bid to rent an Amtrak billboard was denied because his work made a political statement.

The federal government failed to justify its 60-year-old ban on labeling the alcohol content of beer and other malt beverages.

States can ban lawyers from contacting accident victims or their families within 30 days of death or injury. On a 5-4 vote, the majority said Florida documented the need for a 30-day curb to shore up the profession's "flagging reputation," but the dissent warned the ruling unsettles First Amendment protection for commercial speech.


The court said public schools can subject student athletes to suspicionless drug testing without running afoul of the Constitution.

On a 6-3 vote, the justices concluded that student athletes who voluntarily try out for teams have a reduced expectation of privacy that can be outweighed by school authorities' interest in protecting them against the general danger of drugs and the specific threat of injury.

It was the first Supreme Court ruling to uphold random drug testing outside safety-sensitive jobs where testing was justified by "special government need."

Criminal law

The court made it easier for federal judges to consider appeals by death-row inmates and other state prisoners who say newly discovered evidence proves they're not guilty.

Reaching an issue left open two terms ago when the court held that it would be unconstitutional to execute someone who is "actually innocent," the court ruled 5-4 that inmates need only show that a constitutional error "probably resulted in the conviction of one who is actually innocent" to get a new hearing.

The ruling in the case of Missouri inmate Lloyd Schlup, who came within hours of being executed for killing a fellow prisoner even though Schlup's new lawyers found 18 witnesses who said he didn't do it or wasn't in the cell block when the murder occurred. Also, a prison camera caught him in the cafeteria at the time.

In other cases, the court:

Said the "cumulative effect" of evidence a prosecutor withholds from the defense can so constitutionally taint the fairness of a trial that confidence in the verdict is compromised.

Held that judges have the constitutional power to impose a death sentence, whether the jury agrees or not.

Curbed the right of prison inmates to have a hearing before they are disciplined with solitary confinement.

Ruled that the Fourth Amendment safeguard against "unreasonable searches and seizures" requires police with search warrants to knock and announce their presence before entering a home in most cases. The justices, however, left it for lower courts to say if an individual unannounced search is "reasonable" or not.

On other search-and-seizure issues, the justices said that unlawful arrests stemming from computer errors by court employees don't always require that evidence be tossed out. This slight expansion of the "good-faith" exception for evidence that is seized improperly came at a time when the FBI's National Crime Information Center alone provides some 71,000 federal, state and local law enforcement agencies with computer access to more than 23-million records.

Health and welfare

Even though the Clinton administration and Congress couldn't agree on health care reform, the court gave states leeway to try curbing health care costs on their own.

The justices ruled unanimously that the 1974 federal statute that regulates employee health insurance and pension plans doesn't bar states from imposing a hospital surcharge on patients with commercial insurance. The ruling upheld a New York scheme that uses the surcharge to lower hospital rates for non-profit open-enrollment plans that provide coverage to people who otherwise would be uninsurable and gives a break on hospital rates to health maintenance organizations that take on low-income Medicaid patients.

In advance of federal efforts to overhaul welfare, the court said states can save money by limiting payments to extended families under Aid to Families With Dependent Children, the current federal-state effort that is the nation's basic welfare program. The court agreed to review a state experiment limiting AFDC payments to newcomers for a year but found they could not decide the case for technical reasons.

Business cases

The high court holding that the Endangered Species Act prohibits private property owners, like the federal government, from destroying habitat might have marked a setback for business and the property rights movement.

But with the statute under fire and up for renewal in Congress, lawyers who follow the high court business caseload minimized its importance when weighed against a term in which the justices struck a balance between corporate and consumer interests.

The justices' concern bolstering alteratives to lawsuits and the federal statute that authorizes arbitration surged to the fore in the face of lower courts' refusal to enforce arbitration agreements.

The justices used a quartet of cases _ ranging from arbitration clauses in boilerplate consumer contracts to bills of lading for international cargo shipments _ to uphold arbitration agreements and the conditions they spell out as proper alternatives to lawsuits.

Still to be addressed is whether workers retain the right to go to court over illegal job bias because of race, sex, age and the like if they sign employment agreements requiring arbitration of work disputes, an increasingly common condition for management advancement. The issue is expected to reach the high court next term.

In other key cases, the court:

Told Congress it cannot order cases reopened after judgment is final in overturning Congress' attempt to reinstate private investor suits against savings-and-loan operators, junk-bond kings and others after a 1991 Supreme Court ruling wiped out $4-billion in pending investor fraud cases.

Held that the 1978 federal airline deregulation act doesn't prohibit passengers angered by retroactive changes in frequent-flier programs from bringing breach-of-contract suits in state court.

Said a 1966 federal highway safety act doesn't pre-empt state law suits against truck manufacturers for failing to install anti-lock brakes because current federal safety rules don't require them.

Held that national banks can sell insurance annuities to their customers in the high-stakes fight over one-stop financial shopping.

Gave states the go-ahead to charge sales tax on the full price of bus trips and other transportation heading out-of-state. The justices said the Constitution lets states tax transportation even when part of the travel occurs outside their borders in upholding a levy by Oklahoma, the only state to have such a tax to date.

_ Information from Knight-Ridder Newspapers, Scripps Howard News Service and Reuters was used in this report.

Supreme Court, by the numbers

Most likely allies: On the right, justices Antonin Scalia and Clarence Thomas voted together most frequently this term _ in 83 percent of the non-unanimous cases. On the left, Clinton-appointed justices Ruth Bader Ginsburg and Stephen Breyer stuck together 79 percent of the time.

Least agreeable twosome: Justices John Paul Stevens and Thomas voted the same way less than 11 percent of the time in non-unanimous cases. The runners-up were Stevens and Scalia, at 19 percent.

The rookie Breyer: After Ginsburg, Breyer's next most likely ally was Justice David Souter, with whom he voted 74 percent of the time in split cases. He was least likely to agree with Thomas (43 percent).

Swing votes: Justices Anthony Kennedy and Sandra Day O'Connor cast key votes and wrote critical opinions in most of the 16 cases decided by a 5-4 vote. Kennedy was in the majority 13 times; O'Connor 11.

Lone dissenter: Stevens, renowned for his independence, filed solo objections to majority opinions nearly 10 percent of the time.

Unanimity and splitsville: An unusually large _ 43 percent _ of this term's decisions were unanimous. But a relatively big share _ 20 percent _ came down to the wire with 5-4 rulings.

Note: Voting rates are based on justices reaching the same result, but not necessarily by the same reasoning.

Source:Wall Street Journal