Section 5: Civil Rights Institute of Bill of Rights Law at the William & Mary Law School

College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 1996 Section 5: Civil Rights Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 5: Civil Rights" (1996). Supreme Court Preview. 77. https://scholarship.law.wm.edu/preview/77 Copyright c 1996 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview THE SUPREMES FIND A THEME The Court Steers to the Center And Stresses Equal Rights The Washington Post, OUTLOOK Sunday, July 7, 1996 Garrett Epps What in the world is happening at the Supreme for example is the beginning of the court's opinion Court? The justices split three ways in deciding in Adarand Constructors v. Pena, a high-profile whether the government could restrict "indecent" affirmative-action case from the 1994-95 term: programming on cable TV, and then refused to "O'CONNOR, J., announced the judgment review Hopwoodv. Texas, a closely watched case in of the Court and delivered an opinion with which a lower court threw into doubt the whole area respect to Parts I, II, r-A, 1-B, III-D, and IV, of affirmative action in higher education admissions. which was for the Court except insofar as it But confusion at the Rehnquist court is old might be inconsistent with the views expressed news; we've been reading about it for nearly a in the concurrence of SCALIA, J., and an decade. More interesting were two key decisions opinion with respect to Part I-C. Parts I, II, that may signal the emergence of a stable center on H-A, H-B, E-D, and IV of that opinion were the court -- a center whose influence may last long joined by REHNQUIST, C. J., and KENNEDY after the sun has set on the Rehnquist era. The and THOMAS, JJ., and by SCALIA, J., to the important cases are United States v. Virginia, in extent heretofore indicated; and Part H1-C was which the court ordered the state-sponsored Virginia joined by KENNEDY, J." Military Institute to admit women, and Romer v. Everybody straight about that? I teach these Evans, in which the court told Colorado and its cases for a living, and I am still puzzling over that voters that they could not amend the state's one. The court's secretiveness and prestige hide its constitution to exclude gays and lesbians from squabbling from public view; but this kind of civil-rights laws. gibberish is the judicial equivalent of the Both cases were decided by the same six-vote self-indulgent congressional food fights that are majority: Justices Stevens, O'Connor, Kennedy, boffo with C-SPAN viewers. It's also a distinct Souter, Ginsburg and Breyer. The two opinions novelty in Supreme Court history. Chief Justice suggest that these six have begun to unite around a John Marshall built the court's prestige in the early theory of American political life and of the court's 1800s by refusing to allow dissents at all; the entire place in it. The theory stresses the right of each decade of the 1930s -- a now-legendary time of citizen to participate on equal terms in the political turmoil and ideological strife on the court -- process; more important, it gives a specific produced fewer dissents and concurrences than are definition of what "equal participation" should be. announced in one term of the current court. That's good news - even for those who don't fully This year, however, the court spoke clearly, and agree with the theory. correctly, in two of its most important cases. Both Ask yourself what the public pays Supreme opinions probed beneath state rationalizations for Court justices to do. The court is a well-funded discrimination. Colorado defended its harsh bureaucracy, assigned one relatively pleasurable amendment as simply barring gays from "special task: interpreting the Constitution and federal rights;" Justice Anthony Kennedy wrote that "we statutes in the context of actual disputes. We want find nothing special in the protections Amendment the court's decisions to be "correct," whatever that 2 withholds ... Central both to the idea of the rule means; but it's at least as important that they be of law and to our own Constitution's guarantee of clear. Society cannot live by law if it can't equal protection is the principle that government understand it. and each of its parts remain open on impartial terms In these terms, the public hasn't gotten its to all who seek its assistance." money's worth from the Rehnquist court. Having VMI's lawyers claimed that maintaining a gained almost complete control of its docket in prestigious all-male school fostered "diversity"; 1988, the court has sharply cut back its case load Justice Ruth Bader Ginsburg wrote that a plan that (only 75 cases this term, the lightest load since the "serves the state's sons" but "makes no provisions early 1950s). Of the cases it takes, it "decides" many for its daughters" represents not diversity but in a morass of plurality opinions, special discrimination. VMI argued that the vast majority of concurrences and partial dissents that are almost women would not profit from its harsh "adversative" incomprehensible even to trained specialists. Here, educational style. That was constitutionally 163 irrelevant, said the court: "The question is whether favor of a "color-blind" participation right that many the State can constitutionally deny to women who observers will find insensitive. have the will and capacity, the training and attendant Nonetheless, the 1995-96 term may be opportunities that VMI uniquely affords .... There remembered as the time when court-watchers first is no reason to believe that the admission of women saw the light at the end of a long, dark tunnel. The capable of all the activities required of VMI cadets Reagan-Bush vision of a Supreme Court that would would destroy that institute rather than enhances its enforce radical conservative values has definitively capacity to serve the "most perfect Union.' failed. It was rejected as decisively by Republican Whether the court calls its inquiry "rational appointees (Justices O'Connor, Kennedy, Souter) as relationship" review (as in the Colorado case) or by Justices Ginsburg and Breyer, President Clinton's "skeptical scrutiny" (as in the case of VMI), its nominees. opinions imply that it will carefully analyze But there will be no reflowering of Bill neutral-sounding legalisms offered to justify Brennan-style liberalism either. If the Warren court unequal treatment. Its central theory seems to be saw itself as defending individual rights, the new that every American has a right to carve out his or court may come to see its own role as defending the her niche in society, without government right of individuals to fight their own battles. This classifications that tilt the playing field. Gay people right will take precedence over the rights of and women pay the same taxes as others, cast the governments to stack the political deck, whether in same votes and salute the same flag; they must have defense of "traditional values," "states' rights" or an equal chance -- not to win inclusion, but to fight any other set of governmental interests. for it, whether in the state legislature or in the For more than a quarter-century, the role of the admissions office of a college their taxes pay for. court has been an object of intense political dispute. The court's vision, though, is far from complete. Out of that process may come a new view of the role First Amendment questions still split the six-justice of courts - one that draws inspiration less from center, and they have yet to propose a convincing political ideology than from the American tradition theory in cases involving race. Justices O'Connor of judicial independence. This term may mark the and Kennedy tend to view the Constitution as moment when that new vision began to drift into mandating no more than individual equality, while focus. Justices Souter and Ginsburg seem to believe that a history of discrimination may justify some remedial (Garrett Epps, a former reporter for The measures. Confusion and factionalization may Washington Post, teaches constitutional law at the persist in this crucial area on the bench as it does in University of Oregon Law School.) the nation at large - or the court may resolve it in The Washington Post Copyright 1996 164 COURT RULINGS ON RACE DISMAY CIVIL RIGHTS ADVOCATES A LACK OF UNIFORM STANDARDS IS CITED The Boston Globe Friday, July 5, 1996 Ann Scales, Globe Staff WASHINGTON - In a session that touched on because its central question was moot; the law many of the pressure points of American life, the school no longer uses the program. Supreme Court handed down a thunderous "Given the way the Supreme Court has been expression of intolerance for sex and gender bias going on racial discrimination cases," Shaw said, but was reluctant to wade deeper into race issues. "the fact that it chose to pass on this may be a Civil rights advocates argued that the court blessing in disguise." refused to apply the standards it set for sex and Scott Bullock, staff attorney at the conservative gender bias to racial issues, leaving many of them to Institute for Justice, said it is "hard to generalize" say they dread the court's next term. about the term. "There is really no consistency "I'm not particularly looking forward to cases running through a lot of the decisions this year," he going to the Supreme Court these days," said said.

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