Justices, civil rights laws appear on collision course

Anti-federal stance unlikely to change, as new term opens

October 02, 1999|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court begins a new term Monday, with federal civil rights laws likely to collide repeatedly with the majority justices' hardening views against wide-ranging laws passed by Congress.

For eight terms -- the entire time that the present majority of five conservative justices has served together -- those five have combined to cast doubt on or strike down broad federal statutes.

But, with one exception, the laws that have fallen or become sharply narrowed were not designed to protect civil rights. The exception -- a law intended to protect religious liberty -- was also nullified, leaving at least the impression that civil rights laws also are vulnerable.

The trend is causing a rearrangement of governmental power, curbing what Congress can do while enhancing the powers that states may exercise and insulating them from federal control.

This rearrangement is inspired by the states' rights views of Chief Justice William H. Rehnquist, who regularly has the support of Justices Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

On the other side, reluctant to second-guess Congress, are Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.

The lineups appear unlikely to change in the court's new term, though the status of Justice Ginsburg is uncertain, as she recovers from surgery last month for colon cancer.

In the new term, the majority's view toward Congress' powers will be tested more than in the past in constitutional disputes over civil rights laws, especially those that establish new rights rather than only strengthen the enforcement of existing rights.

Civil rights advocates appear pessimistic about the prospects.

"I'm not at all certain," said Steven R. Shapiro, legal director of the American Civil Liberties Union, that the court will be more receptive to civil rights legislation than to the other types of federal laws it has been striking down.

O'Connor may be the key

The key to the outcomes in rights cases, Shapiro said, "comes down to Justice O'Connor," who usually casts the court's pivotal vote on closely divided cases.

He expressed hope that she, among the conservative five, would be sympathetic to congressional action to bolster civil rights, especially women's rights.

By contrast, groups such as the conservative Cato Institute say the court is overdue in restoring states' power and curtailing Congress' sweeping social legislation.

The court, shaping its docket for the new term, has agreed to rule on the constitutionality of three laws creating new civil rights, and it has others awaiting its attention. Two of the three laws could affect women's rights. They are:

A 1994 law that seeks to protect women against sexual violence by permitting damages lawsuits against attackers.

A 1994 law to enhance the privacy of individuals by barring states from releasing personal information in motor vehicle records. Women's rights groups say that access to such information has led to the stalking of women who seek abortions and doctors who perform them.

A 1967 law barring age discrimination in the workplace.

All three of these laws have been struck down by federal appeals courts, which have taken clues from the Supreme Court's recent trend to revive the protection of "federalism." Under that doctrine, power is to be shared between national and state governments, with the states treated more like equals.

Emboldened by that revival, states have moved aggressively to challenge other federal laws on the theory that they, too, intrude on states' prerogatives -- laws ranging from the Equal Pay Act to the Americans with Disabilities Act to the Individuals with Disabilities Education Act.

"For many years, the Supreme Court ignored the importance of federalism," said Ronald D. Rotunda, a law professor at the University of Illinois. "But, in the last few years, the court appears to be embarking on a journey to revitalize its protections" -- specifically, the protections that federalism gives to states.

"It is too early to tell how this story will end," he said.

Roger Pilon, vice president for legal affairs of the Cato Institute, said, "The court is serious about reviving federalism and limiting the power of Congress. In 1992, 1995, 1997 and on its final day of the term last June, the court reasserted federalism principles by striking down acts of Congress that were unauthorized by the Constitution."

In the past eight terms, the court has issued nine rulings to buttress state sovereignty. In eight of those, it struck down or narrowly restricted the federal laws at issue.

Charles J. Cooper, a former Rehnquist law clerk and now a Washington lawyer who argues cases before the court, said that "the rediscovery of constitutional limits on the reach of federal power" is the "most notable" development in the work of the court under Rehnquist.

Eager for battle

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