Supreme Court to tackle "punted" political issues

By John Crouch, Attorney at Law, Crouch & Crouch, Arlington, Virginia; (703) 528-6700;
Copyright John Crouch 1994 / / Amicus Curiae, College of William and Mary
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From affirmative action to waste disposal, the Supreme court is facing divisive questions that Congress, presidents and the American people have failed to resolve, said 20 scholars and journalists at this weekend's Supreme Court Preview. Issues that define America's core beliefs have been "punted to the courts," as Prof. Neal Devins said of the question of the 1991 Civil Rights Act's retroactivity.
Panelists hoped Court moderates would draw a line between conflicting goals of racial equality of opportunity and equality of result. Reporter Linda Greenhouse warned that the Court's affirmative action "chickens are coming home to roost." In an upcoming case, the administration wants to make a Georgia county change its government system, in which one man makes and executes the laws, as it gives minorities no voice. Veteran Court journalist Lyle Denniston found the proposal drastic, yet Boston University professor Tracey Maclin and others said it followed logically from past cases.
Greenhouse sparked furious debate on Justice Ginsburg's role by predicting the Court would prohibit gender-based peremptory jury strikes. Minnesota professor Suzanna Sherry was unsure of Ginsburg's swing vote because the case had two feminist sides: a mother sought an all-female jury in a paternity suit. However, Ginsburg made a career of defending men and women from discrimination, Devins and others protested. Ginsburg once argued that any gender discrimination stereotypes women, said reporter Aaron Epstein. Justices are not so myopically result-fixated, Denniston fumed, for "they are writing law for the whole universe of the jury system."
In Harris v. Forklift Systems, the Court for the first time will have to apply its "hostile work environment" standard in a gender harassment case, in which lower courts denied relief because the plaintiff did not quit and was not psychologically damaged. In a moot argument of the case, Maclin said some workers can't afford to quit or to have a "breakdown" before getting the relief other Title VII plaintiffs get, and courts should look at defendants' behavior, not victims' subjective feelings. The moot justices agreed that harassment hampering "working conditions of a reasonable employee" was actionable.
The Court will probably review the constitutionality of a 1992 law controlling cable television. As Epstein explained, its "must-carry" clause gives the justices three identical Maryland Public TV channels, but leaves them unable to view Orioles games without going to Baltimore -- there is simply no room left for the Baltimore commercial channels on the justices' cable systems.
School vouchers would pass the Court's muster, most panelists said. However, California's forthcoming voucher plan may be derailed by that state's Supreme Court, said columnist Bruce Fein.
The Court will extend the Racketeer-Influenced and Corrupt Organizations Act beyond economic crimes to "put Operation Rescue out of business" with triple-damages awards to clinics, reversing a Seventh Circuit case, Denniston predicted.
Panelists disagreed sharply on the pending Religious Freedom Restoration Act, which will undo a recent decision that let states use facially neutral laws to criminalize such religious practices as peyote use. The Act requires governments to prove that prosecuting a particular believer is the least restrictive means to further a compelling state interest. Fein said the Act was unconstitutional, as Congress would be directly controlling state legislation more strictly than the constitution does, and putting religions above the law.
The Court will also decide if accused marijuana dealers must get a hearing before the government seizes their houses by civil forfeiture. It agreed to review a Ninth Circuit decision requiring hearings, which means either that justices want to reverse the decision or that they want to extend it nationwide. The U.S. claims it may seize property by getting a warrant upon probable cause from a magistrate. In this particularly egregious case, the U.S. seized a house four years after the absentee owner pled guilty to "promoting" marijuana. However, many seizure victims are never convicted or even indicted.
The Preview was sponsored and staffed by the Institute of Bill of Rights Law.

John Crouch
Williamsburg, Va.

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