New Conservative Majority Rolls Back Fundamental Rights and Closes Courthouse Doors

June 28, 2007 12:00 am

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NEW YORK — Civil liberties took a beating as the Supreme Court ended its 2006 Term by limiting the ability of local officials to address the problem of segregated schools, making it more difficult to challenge the use of taxpayer funds to promote religion, and restricting student free speech.

“The Roberts Court has moved with lightning speed to roll back fundamental rights,” said Steven R. Shapiro, the ACLU’s national Legal Director. “Having begun with a promise to respect precedent and seek consensus, the Roberts Court has so far done neither.”

“The pendulum has swung fast and far,” Shapiro said. “This has been a Term in which the new conservative majority has flexed its muscle. It did not overrule any major constitutional decisions but it left many in shambles. The settled rules on race, religion, speech, abortion, and the right to sue have all been unsettled.”

Four years ago, the Court recognized that state universities have a compelling interest in a diverse student body and may pursue that goal by considering race as one factor among many in the admissions process. The Court’s 5-4 decision in that case, Grutter v. Bollinger, was written by Justice O’Connor.

With Justice O’Connor retired, the Roberts Court today struck down voluntary desegregation plans for K-12 education in Seattle, Washington and Louisville, Kentucky. The five separate opinions in Parents Involved v. Seattle School District No. 1 (05-908) and Meredith v. Jefferson County Board of Education (05-915) reflect a deeply polarized Court.

“While the outcome in the school cases is disappointing,” Shapiro said, “a majority of the Court nevertheless reaffirmed the important principle that local school districts have a compelling interest in racially diverse schools and do not have to ignore race in their effort to achieve that goal.”

Highlighting his pivotal role on the Court, Justice Kennedy provided the fifth vote necessary to strike down the Seattle and Louisville plans. At the same time, he provided the fifth vote rejecting the view that achieving racially diverse schools is never a compelling state interest.

The impact of the Court’s decision will be particularly striking in Louisville. In response to the city’s history of racial segregation, a judicial order that was in place for 25 years authorized school officials to take race into account when making student assignments. After the judicial order expired, city officials continued that policy in modified form in the hope of avoiding the resegregation that plagues so many cities. Louisville’s effort has now been derailed by the Supreme Court.

Justice Kennedy also wrote the majority opinion in Gonzales v. Carhart (05-380), upholding a federal ban on so-called partial birth abortion by another 5-4 vote. Seven years earlier, the Court had struck down a nearly identical ban from Nebraska.

In a strongly worded dissent, Justice Ginsburg explained the different outcomes by noting that the Court was now “differently composed.” Taking advantage of that change in personnel, Justice Kennedy’s majority opinion rejected many of the core principles that have governed the Court’s abortion jurisprudence since Roe v. Wade was decided in 1973.

Contrary to Roe, the Roberts Court held that Congress could decide what medical procedures are appropriate rather than leave that choice to women and their doctors. Contrary to Roe, the Roberts Court held that doctors could be sent to jail for performing a procedure that they believe necessary to preserve a woman’s health unless they first obtain a judge’s permission by stopping at a courtroom on the way to the operating room. And, contrary to Roe, the Roberts Court held that Congress could enact its ethical preferences into law in order to protect women who (the Court thought) might later regret their choice to have an abortion.

Remarkably, Justice Kennedy was part of the majority in every 5-4 decision by the Court this Term, including Hein v. Freedom from Religion (06-157), which called into question four decades of Establishment Clause law by sharply restricting the ability of taxpayers to stop the government from funding religion. Under the Court’s new theory, taxpayers are prohibited from challenging government-funded religion that the executive branch has chosen to pay for using discretionary funds.

The implications of that ruling were brought into stark relief by the Court’s suggestion that a taxpayer’s only recourse if executive branch officials chose to build a church, synagogue or mosque with public funds would be to seek relief from Congress rather than the courts.

More generally, the Roberts Court seems anxious to find ways to shut the courthouse doors. In Ledbetter v. Goodyear Tire & Rubber Co. (05-1074), the Court ruled, in an opinion written by Justice Alito, that women who receive lower pay than men for the same job cannot seek relief under Title VII of the 1964 Civil Rights Act unless they sue within 180 days of the initial discriminatory salary decision, even if they did not know at the time what other employees were earning. In Bowles v. Russell (06-5036), an opinion written by Justice Thomas, the Court dismissed an appeal by a murder defendant because it was filed two days late, despite the fact that the error in calculating the filing date had been made by the trial judge. Justice Souter responded by observing: “It is intolerable for the judicial system to treat people this way.” Both cases were decided by 5-4 votes.

The one notable exception to this trend was the Court’s 5-4 decision in Massachusetts v. EPA (05-1120), an important environmental ruling that directed the EPA to address the problem of greenhouse gas emissions. Even so, the majority’s willingness to treat a state’s right to sue on behalf of its citizens with “special solicitude” provoked a vigorous dissent from Chief Justice Roberts.

The Court’s record on free speech issues was a mixed one. In Morse v. Frederick (06-278), an ACLU case, the Court allowed school officials to censor a student banner reading “Bong Hits 4 Jesus” without any evidence that the banner, which was displayed at a public parade, disrupted school activities in any way. Characterizing it as a banner about drugs, the Court in effect created a drug exception to student free speech rights. However, the Court stopped short of endorsing the school district’s even more extreme position that it could censor any student speech that school officials deem “offensive” or inconsistent with the school’s educational mission.

In FEC v. Washington Right to Life (06-969), the Court held that unions and corporations, including non-profit corporations like the ACLU, could not be prohibited from broadcasting issue ads on radio and television in the weeks preceding an election unless the ads unambiguously call for the election or defeat of a particular candidate. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor,” Chief Justice Roberts wrote in yet another 5-4 decision.

The Court’s search-and-seizure decisions this Term demonstrated more agreement than discord, but that probably says more about the particular cases before the Court than any newly emerging common ground.

In Brendlin v. California, (06-8120), the Court unanimously held that a car’s passengers, as well as its driver, can object to an unlawful police stop. The Court rested its opinion on the commonsense observation that most people do not feel free to walk away from a car that has been stopped by the police, and thus a seizure of a car is reasonably understood as a seizure of both its driver and passengers. More fundamentally, the Court recognized that a contrary rule would invite police to stop cars randomly and, as the ACLU pointed out in its brief, encourage racial profiling.

In Scott v. Harris (05-1631), on the other hand, the Court held that the police did not violate the Fourth Amendment when they rammed a speeding motorist off the road to end a high-speed chase, leaving him a quadriplegic. Although the police had no reason to suspect the motorist of anything but speeding, Justice Scalia rejected the notion that the police should have ended the chase rather than use potentially deadly force, and concluded that risking the life of the driver was less significant than risking the lives of bystanders and the police if the high-speed chase continued.

The Court’s criminal justice docket was a full one this year. In Whorton v. Bockting (05-595), the Court ruled that a 2004 decision reinterpreting the Confrontation Clause to provide defendants with additional rights does not apply retroactively to cases that have already completed their direct appeals. In Rita v. United States (06-5754), the Court highlighted the ongoing significance of the federal sentencing guidelines by ruling that appellate judges may, if they choose, treat sentences within the guideline range as presumptively reasonable even though the guidelines are now advisory rather than mandatory. And in Cunningham v. California (05-6551), the Court declared California’s Determinate Sentencing Law unconstitutional because it allows the sentencing judge to make critical fact-finding decisions that properly belong to the jury.

On the ultimate sentencing question, the Court continued to grapple with the death penalty in a series of 5-4 decisions. Justice Kennedy’s vote was once again critical. For example, in Panetti v. Quarterman (6-6407), Justice Kennedy wrote a broadly worded opinion reaffirming the principle that the Eighth Amendment bars execution of a prisoner who is insane at the time of the scheduled execution. On the other hand, Justice Kennedy also wrote the majority opinion in Uttecht v. Brown (06-413), which makes it easier for prosecutors to exclude potential jurors who express any qualms about the death penalty, even if they also indicate that they are prepared to follow the law.

A summary of all of the Court’s civil liberties-related cases from this Term is online in PDF format at:

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