At Term's Tumultuous End, ACLU Sees An Increasingly Activist High Court

WASHINGTON -- The Supreme Court ended one of its most significant terms in recent memory today in tumultuous fashion: striking down a ban on so-called "partial birth" abortion, upholding restrictions on abortion clinic protests, upholding a program of federal aid to parochial schools, and supporting the right of the Boy Scouts to exclude gay troop leaders.

In separate news releases issued today, the ACLU hailed the Court's rejection of Nebraska's anti-abortion law as a resounding triumph for reproductive freedom and said that the Court's ruling that Boy Scouts of America is exempt from state laws that bar anti-gay discrimination will have only a limited impact on civil rights laws nationwide.

"In pursuit of what remains a largely conservative agenda, this has become one of the most activist Courts in American history," said Steven R. Shapiro, national legal director of the American Civil Liberties Union.

The concept of privacy loomed large in several of the Court's opinions this year, even if the Court did not always invoke the language of privacy to justify its results. Most prominently, in Stenberg v. Carhart, the Court in a 5 to 4 decision once again reaffirmed a woman's basic right to reproductive choice in striking down a ban on so-called "partial birth" abortions.

Puncturing the myth that these bans were designed to prohibit a single abortion method, the majority concluded instead that the broad wording of the bans in fact threatened to outlaw the most common methods of abortion used in the country today, and thus could not be upheld without directly undermining the fundamental premises of Roe v. Wade. The Court also declared the Nebraska law unconstitutional because it failed to include an exception for women's health.

Unfortunately, the Court misapplied the privacy principle in Boy Scouts of America v. Dale, ruling 5 to 4 to uphold the right of the Boy Scouts to exclude a gay scout leader solely on the basis of his sexual orientation in violation of New Jersey's antidiscrimination law.

As the Court correctly noted, the ability of individuals to join together with others who share their ideological viewpoint is an important aspect of the right to freedom of association protected by the First Amendment. However, the antidiscrimination laws would be impossible to enforce if they could always be trumped by groups that proclaimed an ideological disagreement with the principle of nondiscrimination itself. In our view, that is all that was shown on the record in this case.

The Court also issued two critical decisions this Term involving religion. In Santa Fe Independent School District v. Doe, another ACLU case, the Court resolved the long simmering controversy over so-called "student-initiated" prayer by holding that the Establishment Clause does not permit a school district to conduct a student election to determine whether prayers will be delivered over the public address system at a high school football game.

Disappointingly, the Court's 6 to 3 decision today in Mitchell v. Helms further blurred the line of separation between church and state by permitting federal funds to be used to purchase computer (and other) equipment for parochial school students even though the equipment purchased with public money could just as easily be used for religious instruction as for secular teaching. Significantly, however, five Justices (two of them in the majority) refused to embrace the key legal arguments advanced by advocates of school vouchers.

By and large, Shapiro said, the Court's constitutional decisionmaking has not been motivated by a concern for individual rights but, rather, by a desire to preserve what it regards as the proper constitutional balance of power between Congress and the judicial branch, and between the states and the federal government.

"A majority of the Court was appointed by presidents who claimed to be looking for judges who would enforce law, not make law," said Shapiro. "Yet, this Court has shown a greater willingness to strike down Acts of Congress than any Court since the early days of the New Deal."

This helps to explain, for example, the Court's surprisingly lopsided vote earlier this week to uphold Miranda in United States v. Dickerson. Although Chief Justice Rehnquist had frequently criticized Miranda in past decisions, he wrote a forceful opinion for the majority in Dickerson reaffirming the principle that it is the Court, not Congress, that is ultimately responsible for interpreting the Fifth Amendment.

On the other hand, the Court continued to breathe new life into the doctrine of state's rights by invalidating two important pieces of civil rights legislation enacted by Congress during the past decade. In United States v. Morrison, the Court held that Congress had exceeded its powers under both the Commerce Clause and the Fourteenth Amendment by allowing the victims of sexually motivated violence to sue their attackers in federal court. And, in Kimel v. Florida Board of Regents, the Court held that the Eleventh Amendment protected the states against suits by their employees under the federal Age Discrimination in Employment Act.

One notable exception to this trend was in Reno v. Condon, where the Court rejected a challenge to the federal Drivers Privacy Protection Act, which generally bars the states from disclosing personal information contained in their motor vehicle records. In a ruling that may prove extremely significant in an Internet world, with all of its potential for diminished privacy rights, the Court held that the interstate sale or exchange of personal data across state lines is a proper subject for congressional regulation under the Commerce Clause.

By contrast, in California Democratic Party v. Jones, the Court upheld a much more traditional associational claim in ruling that the state could not try to influence the nominee and message of a political party by forcing the party to choose its candidate through a "blanket primary" that was open to all voters, thus allowing nonparty members to exercise a potentially decisive influence on the primary outcome.

In Troxel v. Granville, the Court considered a different kind of association claim, this time under the rubric of substantive due process, when it held that a Washington State statute had been unconstitutionally applied to override a mother's decision about when and how often her children should visit their grandparents.

The Court's sensitivity to privacy even extended to the Fourth Amendment, where the Court has been markedly unsympathetic to defendants' rights in recent years. In Florida v. J.L., the Court unanimously refused to water down the standards for a stop-and-frisk whenever the police receive an anonymous tip that someone may be carrying a gun. And, in Bond v. United States, the Court suppressed the evidence found by immigration agents who boarded a bus at an immigration checkpoint and then squeezed the luggage on the overhead rack looking for drugs.

Neither of these decisions explicitly referred to the increasing evidence of racial profiling and the danger that excessive police discretion can lead to discriminatory law enforcement. But, that was a dominant theme of Justice Stevens' dissent earlier in the term in Illinois v. Wardlow, where the majority held that the fact that someone who is not otherwise engaged in suspicious behavior flees when the police approach in a high crime area can be taken into account in determining whether there is sufficient grounds for a stop-and-frisk.

More generally, criminal defendants fared unusually well in the Court's decisions this past term. In two cases, both oddly entitled Williams v. Taylor, the Court rejected the most extreme interpretations of the habeas cutbacks enacted by Congress as part of the Antiterrorism and Effective Death Penalty Act of 1996. And, in one of the two Williams cases, the Court held for the first time that a death row inmate had received ineffective assistance of counsel.

In two other cases involving high profile defendants, the Court held that Webster Hubbell's Fifth Amendment rights had been violated in United States v. Hubbell, and it set aside the conviction of several members of the Branch Davidian sect in Castillo v. United States. The decision in Castillo turned on the Court's conclusion that certain critical questions had been taken away from the jury. Returning to that question again in Apprendi v. New Jersey, the Court held that the jury, not the judge, must decide whether the defendant acted with a racial purpose in a hate crime prosecution.

The Court showed less concern for prisoners' rights in Miller v. French, an ACLU case, when it ruled that Congress could require federal judges to impose an automatic stay on existing court orders in prison lawsuits, thus relieving prison officials of any obligation to obey an injunction against unconstitutional conditions, if a motion by prison officials to terminate the court order under the Prison Litigation Reform Act has not been resolved within a maximum of 90 days.

The Court's free speech jurisprudence continues to be dominated by its emphasis on content neutrality, which is to say that government efforts to regulate speech cannot depend on whether the government agrees or disagrees with what is being said. Thus, in Colorado v. Hill, the Court upheld what it described (wrongly, in the ACLU's view) as a narrow restriction on abortion clinic protests, saying that the speech had not been singled out for special treatment because of its message.

In Board of Regents of the University of Wisconsin v. Southworth, the Court (this time correctly, in the ACLU's view) rejected a challenge to the use of student activity fees to fund controversial campus groups because the funds were distributed on a content neutral basis.

Two other speech cases decided this Term were more significant for the subjects they addressed than for any new law they made. In Nixon v. Shrink Missouri Government PAC, Inc., the Court upheld state campaign contribution limits of $1,000, which were identical to the contribution limits the Court had upheld in 1976 under federal law in Buckley v. Valeo. Similarly, in City of Erie v. Pap's A.M., the Court again upheld a nude dancing ban, as it previously had done in 1991 in Barnes v. Glen Theatres, Inc.

Finally, in United States v. Playboy Entertainment Group, Inc., the Court struck down a provision of the 1996 federal Telecommunications Act designed to limit the availability of sexually explicit programming on cable television, and that the government had sought to justify as a means of protecting children. In an expansive essay on the First Amendment that may have far reaching consequences for other technologies, Justice Kennedy stressed that the choice of what to see and hear belongs to each individual under the First Amendment, and not to the government.

"This is the sort of year that makes Supreme Court watchers bleary eyed," Shapiro said. "Its final-day flurry of decisions included both good news and bad. In the midst of a presidential election, the Court's far-reaching agenda serves as another reminder of the central role that the Court plays in our political life."