A Supreme Court That Suburbia Could Love
The term ends with rulings that reflect middle-class values.
At the end of the 1990s the rulings and direction of the US Supreme Court reflect, more than any time in recent decades, an American mainstream set of views and values.
Having handed down its 91 opinions this term, including four significant rulings on sexual harassment, the nation's top legal body is being called a "Clinton era" court: Not dominant ideology but compromise drives decisions. The court's tone is comfortable. Rulings center on issues of economic rights and well-being and a middle-class sense of law and order. Few extreme positions hold sway on the right or left.
It is a court, in short, where conservative Chief Justice William Rehnquist occupied a new centrist position, "outswinging" even Justice Sandra Day O'Connor, who has long been the crucial "swing vote" between the moderate and conservative wings of the highest US legal body.
Unlike last year's "term of the decade," which was chockablock with hard questions such as the right to end one's life, the term that ended Friday was quieter. The justices were more collegial and the bulk of the rulings more technical and lawyerly. It wasn't a constitutional blockbuster.
Even the signature rulings this term - like sexual-harassment opinions that clarify laws for suing negligent employers, or a judgment allowing "decency standards" in federal arts funding, or a ruling that those afflicted with HIV are legally "disabled" - all interpret federal laws. These laws will affect millions of Americans. But they don't engage lofty constitutional principles. The major constitutional decision this year, striking down the presidential line-item veto, indicates the court's move away from the legal reasoning of the New Deal. It reflects earlier theories that limit federal power.
Mainstreaming of court
The court's few cases on individual liberties - voting, free-speech rights, and questions of race - seem to reflect a more mainstream approach. So does its lack of controversy. The court, for many years, has championed individual rights. More recently, it has been marked by conservative thinking. Yet the reasoning among justices this year was eclectic - a blend of both left and right that followed no clear pattern.
"The decisions that define the court this year would make soccer moms happy," says Mark Tushnet of the Georgetown University School of Law. "This court seems very much a court that respectable suburban Americans will like. Very middle of the road. Very Clinton."
Partly, the mainstream trend is attributed to the chief justice. In recent years the tribunal has been labeled the "Rehnquist court" - due as much to Rehnquist's influence as to the office of chief justice. "You see Rehnquist now becoming integrated into the mainstream of the court," argues constitutional scholar Michael Dorf of Columbia University in New York. "He votes more often with [Justices] Breyer, Stevens, and Souter than in the past."
Vote tallies compiled by Tom Goldstein of Boies & Schiller, a Washington law firm, shows how much Rehnquist moved to the center this year. "He's aligning more with moderates than in the past," Mr. Goldstein says. "He's to the right of [Justice Anthony] Kennedy but to the left of [Justice] O'Connor."
That Rehnquist asked the most liberal member of the court, Justice John Paul Stevens, to write the main constitutional opinion of the year, saying no to the line-item veto on grounds of separation of powers, is not lost on court observers. With Rehnquist joining them less often, the conservative "revolution" of Justices Antonin Scalia and Clarence Thomas is in clear decline. The two justices increasingly seem isolated on the right, as in the twin 7-to-2 opinions on sexual harassment handed down Friday.
Even between themselves, these two members seem in flux. Since joining the court in 1992, Justice Thomas has never failed to join Justice Scalia in a 5-to-4 ruling. This year they disagreed four times. Thomas, moreover, in a case denying the government a right to excessive forfeiture of funds, for the first time wrote an opinion on the liberal side of the court - siding with Souter, Breyer, and Stevens.
Overall, the court is no longer moving in the direction Scalia, one of its most forceful and florid members, would like. Scalia's theoretical innovation, which had great impact in the 1980s, can be described as "textualism." Jurists are asked to look strictly at the "plain meaning" of a law or the Constitution - and avoid the temptation to interpret text based on "what one might think was the intent of members of Congress," as Scalia has put it.
Yet this term justices used a range of interpretive tools - history, language, purpose - to rule. For example, the two sex cases Friday rely on Title VII of the Civil Rights Act of 1964. The plain language of the act forbids discrimination, but says nothing about sexual harassment. Yet over time the meaning of Title VII has evolved to include gender issues. "A textualist might be surprised at how much this court is able to get out of Title VII," says Mr. Dorf.
"Rehnquist recognizes that Scalia is painting himself into a box," says David Cole of Georgetown University, who argued the NEA case before the court. "Rehnquist wants more freedom."
One of the more important signals of the court's direction may be buried in a decision on coal miners' medical rights, handed down in the last two days amid larger court pyrotechnics. In a concurrence to the ruling, Justice Kennedy concluded that the law the court struck down was a violation of due process. He argued that private property is not subject to regulation.
Like a guns-in-schools case three years ago (Lopez), and an Indian tribal dispute two years ago (Seminole), the rationale Kennedy employed leaps back over 60 years of court reasoning. The repudiation of the New Deal in the Lopez and Seminole rulings was met by dissents of great anguish and trepidation. If the Kennedy reasoning on substantive due process holds in the next few years, the court may have turned a corner on doctrine about individual rights and federal power.
Redefining sexual harassment
Friday's two rulings on sexual harassment will have significant impact in the workplace. In one case, a female lifeguard was harassed by a city-employee supervisor. In the other, a female employee in a private firm was harassed by her boss, though she did not suffer a loss of promotion. The court ruled in a new doctrine of "affirmative defense" that employers are protected from liability only if they can show they have set up comprehensive harassment policies. Harassed employees can now sue even if they don't suffer a "quid pro quo" loss of job or pay.