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Sunday, May 31, 2020  Spokane, Washington  Est. May 19, 1883
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Wheels Of Justice Taking A Sharp Turn To The Right

By Aaron Epstein Knight-Ridder

Suddenly, the Supreme Court’s conservative majority flexed its muscles and the role of race in American law changed.

Yesterday’s winners - racial minorities - had become today’s losers. Veterans of the civil rights movement winced and spoke glumly of the end of an era.

In June, by a split of five conservatives against four moderates, the justices restricted federal affirmative action programs, endangered all election districts drawn to create black or Hispanic majorities, and limited remedies for school segregation.

The same 5-4 division of justices surfaced in other important decisions on limits of federal power, religion and prisoners’ rights, which makes the next presidential election potentially critical to the direction of the high court into the 21st century.

“It’s very clear that the court has finally taken that strong turn to the right that people have been predicting for many years,” said District of Columbia Law School Dean William L. Robinson.

“The days of broad, dramatic progress in rectifying racial discrimination appear to be over,” Robinson said as the court wrapped up its 1994-95 term last week.

University of Virginia law professor A.E. Dick Howard, who watches Supreme Court developments closely, said the rulings on racial preferences, voting rights and school desegregation “all point in the same direction - that race-based government actions are suspect, whether the purpose is discriminatory or helpful.”

The conservative majority - Chief Justice William H. Rehnquist, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Sandra Day O’Connor - is “trying to take us a great deal closer to a legally colorblind society,” Howard said.

But said Elliot Mincberg, legal director of the liberal People for the American Way, “Discrimination and its effects are still a fact of life in the United States. What is in doubt is whether the court has left us with effective tools to address the problem.”

The turnaround in the court’s tolerance of race-based benefits is clearly seen in the ultra-sensitive issue of affirmative action.

Five years ago, William J. Brennan Jr., then the court’s liberal leader, cobbled together a 5-4 majority in the Metro Broadcasting case to approve racial preferences in the ownership of radio and television stations.

These “benign race-conscious measures” were justified by “the public’s right to receive a diversity of views and information over the airwaves,” Brennan wrote.

The dissenters - Rehnquist, O’Connor, Scalia and Kennedy - needed only a fifth vote to overturn the ruling.

It arrived a year later when President Bush proposed to replace Thurgood Marshall with Clarence Thomas, an African-American beneficiary of affirmative action who had come to oppose it as “racial paternalism.”

Three weeks ago, the strengthened conservative majority dropped the ax in a case called Adarand Constructors vs. Pena.

The court examined a federal program that gave preferential treatment to “disadvantaged” businesses. As a result, a Hispanic-owned firm won a highway guardrail contract even though a white-owned company made a lower bid. The white firm claimed reverse discrimination.

Justice O’Connor wrote for the conservative majority that any government program based on race, even though benignly intended to benefit minorities, is unconstitutional unless it can overcome the highest of legal hurdles: proof that it is narrowly designed to serve a compelling purpose.

On Thursday, the court instructed lower courts to apply the same strict scrutiny to race-based election districts.

Laughlin McDonald, director of the American Civil Liberties Union’s voting rights project, said “there are thousands of redistricting plans in the South and elsewhere” in which race was taken into account. “All of these plans,” he said, “are presumed to be unlawful.”

The affirmative action and voting rights rulings are certain to lead to litigation.

“It’s ironic that this court, whose conservative appetite is to curb the work of the courts, is producing more work for judges to do,” remarked Professor Howard.

Another significant development in term was the court’s interest in another conservative theme: the constitutional limits of federal and state power.

For the first time in nearly 60 years, the court overturned an act of Congress based on its power over interstate commerce, which has been used for decades to justify expanding federal authority.

By enacting a law prohibiting guns near schools, Congress had invaded the power of states over education and failed to demonstration a plausible connection between the statute and interstate commerce, the court ruled.

That decision, U.S. vs. Lopez, may “lead Washington to reconsider its interference with the proper realm of states, localities, families and individuals,” Sen. Spencer Abraham, R-Mich., said hopefully.

He promised to introduce legislation that would require all legislation to state the constitutional authority on which it is based. When uniformity is not necessary, he said, Congress should allow state legislatures to “opt out” of federal regulations and programs.

The division on the court in the Lopez case was identical to that in the three race cases: conservatives Rehnquist, Scalia, Thomas, O’Connor and Kennedy against moderates John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

But in another case dealing with the federal-state relationship, Justice Kennedy switched sides on stateimposed term limits for Congress. It is an unconstitutional expansion of state powers, the court said, for states or their voters to put a ceiling on the number of years that members of Congress may keep their seats.

The conservative-moderate split also surfaced in the most important religion ruling of the term, which permitted the University of Virginia to finance a Christian magazine with student activity money. It was the first time that the court had approved government funding of religious activity.

Advocates of government aid to religion plan to use that ruling to press for government tax vouchers to help parents pay for parochial schools.

But some scholars don’t believe the University of Virginia ruling will advance their cause. They see the decision as a strong endorsement of religious speech, rather than a weakening of church-state separation.

The First Amendment guarantee of free expression again fared well at the court, which struck down state laws barring anonymous campaign leaflets, allowed parade organizers to exclude messages they don’t share, and permitted the Ku Klux Klan to erect a cross on a public square.

And the justices struck down laws barring beer manufacturers from disclosing the alcoholic content of their brews and forbidding federal workers from accepting payments for speeches or articles unrelated to their jobs.

“That shows that conservatism doesn’t mean cutting back on all of the Bill of Rights,” Howard said.

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