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 1999 Section 6: 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 6: Civil Rights" (1999). Supreme Court Preview. 102. https://scholarship.law.wm.edu/preview/102 Copyright c 1999 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview CIVIL RIGHTS In This Section: * LAST TERM: Rita L Saen., et al. v. Brenda Roe andAnna Doe etc., No. 98-97 Citi<enshipHas Its Privileges; The Court Resurrects a Civil War-Era Ideal Linda Greenhouse ............................................ ..... 303 Traveling Back in Time; Privileges and Immunities Clause Unearthed to Strike Down State Welfare Law Thomas E. Baker ............................................. ...... 306 The Supreme Court Exhumes the 14th Amendment's 'Privilegesor Immunities' Clause Clint Bolick ...................................................... 309 * LAST TERM: James B. Hunt,Jr., et al. v. Martin Cromartie, et al., No. 98-85 Voting District Gets Some Leeway; Supreme Court Overturns Ruling in Racial Gerymander Case Linda Greenhouse ........................................................ 312 Motive Counts; Clarence Thomas' Redistricting Guide Stuart Taylor Jr. ................................................... 314 * LAST TERM: Aurelia Davis, v. Monroe County Board of Education, et al., No. 97-843 Supreme Court Ruling Gives HarassedStudents a Way Out Jovan Johnson ............................................ ....... 317 CourtAdopts Strict Test for HarassmentLiability Lynne Bernabei ............................................. ...... 319 * LAST TERMi: Carole Kolstad v. American DentalAssociation,No. 98-208 Ruling Widens Criteriafor Bias Suits, Narrows Employers' liability Steve Lash ....................................................... 323 New limits on Punitive Damages Imposed Debra S. Katz .................................................... 325 * LXST TERM: Karen Sutton and Kimbery Hinton v. UnitedAir lines, No. 97-1943 Justices Raise Bar to Quah as Disabled Joan Biskupic .................................................... 330 301 ParsingDisability Law; Court'sADA Rulings are Tough on Plaintffi Lisa I. Fried ...................................................... 333 LAST TERM: Tommy Olmstead, et al v. LC., et al., No. 98-536 Justices Reject "Unnecessary Segregation" of Mentally Disabledat State Hospitals David G. Savage ............................................. ...... 337 States Limited on InstitutionaliZation Linda Greenhouse ................................................. 339 NEW CASE: Rice v. Cayetano, No. 98-818 NARRATIVE SUMMARY, "Vote Here. HawaiiansONLY": Speial Purpose Elections by Race Matthew Curtis .................................................... 342 Synopsis and Question Presented ................................. ..... 344 HaroldF. Rice v. BenjaminJ. Cayetano, et al., 146 F.3d 1075 (9th Ci.) .............. 345 Supreme Court Roundup: Justices to Weigh Race Barrierin Hawaiian Voting Linda Greenhouse ................................................. 354 When Race Determines Who Gets the Vote Alex Salkever ..................................................... 357 An American Race Law Michael Meyers ............................................ ....... 359 Resurgent Racism in Hawaii? Bruce Fein ....................................................... 361 302 Last Term: Rita L. SAENZ, Director, California Department of Social Services, et al., petitioners V. Brenda ROE and Anna DOE etc. No. 98-97 Supreme Court of the United States Decided May 17, 1999 CITIZENSHIP HAS ITS PRIVILEGES The Court Resurrects A Civil War-Era Ideal The New York Times Sunday, May 23, 1999 Linda Greenhouse IN constitutional law, as in geology, The 14th Amendment, adopted in things can look perfectly stable on the 1868 to ratify the outcome of the Civil surface -- until the tectonic plates shift War, says in its first paragraph, "No state underneath. shall make or enforce any law which shall abridge the privileges or immunities of As the Supreme Court term heads into citizens of the United States; nor shall any its final weeks, the question is whether state deprive any person of life, liberty, or such a shift may be underway. In its property, without due process of law; nor decision last week striking down deny to any person within its jurisdiction California's reduced welfare benefits for the equal protection of the laws." There is newcomers to the state, the Court relied historical evidence that the amendment's on a portion of the 14th Amendment that drafters regarded the privileges-or- forbids states to restrict the "privileges or immunities clause as more important than immunities" of American citizens. the much-invoked guarantees of due This is the long-neglected privileges- process and equal protection that it or-immunities clause, the sudden precedes in the text. resurrection of which, by a broad 7-to-2 But the clause was sent into early majority, was certainly one of the most eclipse by an 1873 Supreme Court surprising and possibly one of the most decision known as the Slaughter-House consequential constitutional developments cases, which held that the clause protected in years. 303 only the rights of national citizenship and undoubtedly achieved a release of placed no new obligations on the states. doctrinal tension much as an earthquake relieves pressure that builds up under the So by turning back to this long-bunied Earth's crust. language, the Court was taking at least a tentative step on a new path of The two-tiered welfare program constitutional analysis. While the ultimate challenged in this case was quite clearly destination is uncertain, it appeals to both unconstitutional under the Court's most conservatives, who see the clause as a new directly relevant precedent, a 1969 source for protection for property and decision called Shapiro v. Thompson that economic rights, and for weary liberals, invoked a constitutional "right to travel" who see it as a means for protecting to bar states from denying welfare individual rights without having to fight benefits during a newcomer's first year of endless battles over the meaning of due residency. process. Yet there was probably no member of And indeed, Justices across the the current Court completely at ease with ideological spectrum signed their names to the analytic method that produced this opinion, from John Paul Stevens, its Shapiro v. Thompson. That decision author and arguably the Court's most represented a kind of high-water mark of liberal member, to Antonin Scalia, one of the Warren Court's open-ended approach the most conservative. to constitutional analysis -- so much so Chief Justice Earl Warren himself While Justice Clarence Thomas that dissented from Justice William dissented, disagreeing that welfare was J. Brennan's majority opinion, which one of the historically protected privileges, candidly conceded that the right to travel he made clear his enthusiasm for was not anchored to any particular place reconsidering the privileges-or- in the Constitution. immunitiesclause in an "appropriate case." That left Chief Justice William H. "We have no occasion to ascribe the Rehnquist oddly isolated in his complaint source of this right to travel interstate to a that "the Court today breathes new life particular constitutional provision," into the previously dormant privileges or Justice Brennan wrote. It goes without immunities clause," an observation that saying that there are no Warren Court- the majority did not rebut. style liberals on the Court today. Briefs from a group of states and other The Justices who came together in the interested parties in the current case urged California welfare case, Saenz v. Roe, did the Justices simply to overrule the 1969 not necessarily do so for the same precedent. reasons, or with the same expectations of where this new opening might lead. The Instead, in Justice Stevens's practiced privileges-or-immunities clause has been hands, the right to travel did not disappear invisible for so long that there are few but morphed into a right of national recognizable signposts, and there were no citizenship that each state is obliged to concurring opinions by which individual honor and that, more to the point, has a members of the majority might have solid foundation in the Constitution's text. elaborated on the analysis. For the Court's moderate justices, the privileges-or-immunities clause offers a But at the least, to carry the geological comfort zone that permits them to defend analogy a step further, the opinion 304 individual rights while shedding the consensus has emerged that the Slaughter- baggage of liberal methodology. House decision of 1873 was based on a mistaken understanding of the intent of For conservatives, particularly those with libertarian leanings like Justice the drafters. Thomas, the appeal of the clause is even Now that the Court has spoken, clearer. There is no dispute that, as a however tentatively, that conversation will matter of history, the privileges the expand to a wider audience. Arguments amendment's drafters sought to protect based on privileges or immunities will be included the right to earn a living, enter developed in law review articles and into contracts and acquire and maintain presented to lower

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