Supreme Court Grants States a Power Surge

WASHINGTON —  The justices of the Supreme Court, having handed down final opinions, left town for their summer recess this weekend, and President Clinton and members of Congress were probably glad to see them go.

Boldly striking down newly enacted laws, the justices showed little regard for the power and prerogatives of the lawmakers who meet on the opposite side of First Street, N.E. They showed even less respect for “the individual who happens to be the president,” as they said unanimously in this year’s most famous case of alleged sexual harassment.

And perhaps more so than ever before, the court’s conservative majority showed itself determined to shift power away from Washington and toward officials of the 50 states.

As Justice Antonin Scalia said on the term’s final day, liberty is best protected and the “risk of tyranny” best avoided by preserving “a healthy balance of power between the states and the federal government.”

And the current court thinks that balance will be preserved only if it puts its weight heavily on the side of the states.

Sometimes, preserving states’ power means protecting them from claims of individual rights.

On Thursday, for example, the court unanimously upheld state laws against doctor-assisted suicide and rejected the claim that terminally ill people have a “right to die.”

The states are free to change their laws but need not do so, said Chief Justice William H. Rehnquist.

Sometimes, preserving states’ power means protecting them from lawsuits.

In April, for example, the court threw out a class-action lawsuit filed by single parents in Arizona who sought to hold state officials accountable for their 5% success rate in child-support collections.

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Though the state’s performance had been “dismal,” as Justice Sandra Day O’Connor put it, her majority opinion nonetheless shielded the state and its officials from being sued.

Sometimes, achieving that “balance of power” means upholding new and far-reaching state criminal laws, even when constitutional rights are at stake.

Last Wednesday, the court upheld the power of state officials to keep sex criminals locked up even after they have served their prison terms. Speaking for a 5-4 majority, Justice Clarence Thomas said this indefinite extra incarceration for those who are deemed “sexual predators” is not truly “punishment” and therefore does not violate the Constitutional protection against double jeopardy.

And as the last week illustrated, sometimes striking the balance means reining in the power of Congress.

In three quick strokes, the court knocked down all or parts of three new laws championed by Clinton and passed overwhelmingly by Congress: the Religious Freedom Restoration Act protecting actions based on religious belief, the Communications Decency Act regulating computer pornography and the Brady Act regulating handgun sales.

The religious freedom legislation required state and local officials to give special deference to legal claims involving religion. This dispute began more than seven years ago when Oregon officials fired two Native Americans for using peyote, an illegal drug. The Native Americans said it was part of their religious experience.

While state and local officials may give special exemptions in law for religious claims, Congress cannot force them to do so, Justice Anthony M. Kennedy said.

The Brady Act ran afoul of the court because it forced local sheriffs to conduct background checks on potential gun buyers.

The president not only saw his favorite measures struck down, he was also personally rebuffed twice by the court in the past month.

The justices unanimously rejected his claim that, as the nation’s chief executive, he should be granted “temporary immunity” from civil lawsuits such as the one filed by Paula Corbin Jones, who has accused Clinton of sexual harassment. And last week, the court dismissed without comment his claim of confidentiality for the notes taken by White House lawyers in meetings with First Lady Hillary Rodham Clinton, notes sought by Whitewater independent counsel Kenneth W. Starr for his probe.

Congress’ members were not spared either.

As if to add personal insult to political injury, the court ruled Thursday that U.S. senators and representatives have no standing in court to challenge the constitutionality of laws such as the Line Item Veto Act. An ordinary citizen who is injured in some way by a vetoed government program can sue, the court said, but not a lawmaker who claims his power has been reduced.

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These rulings certainly reflect the dominant concerns of Rehnquist.

Twenty-five years ago, he joined the court as its most conservative member, and from the start he displayed a clear and unwavering view of the Constitution.

Then, the dominant liberals were still pushing to expand individual rights. For example, in the famed Miranda case, the court had ruled that a police officer’s failure to warn a suspect of his right to remain silent led to a type of unfair self-incrimination. In the 1973 Roe vs. Wade decision, the court announced a new right to abortion.

Rehnquist said these decisions were unwise and unwarranted because they did not stem from what the framers of the Constitution intended. In his view, the document leaves most government decisions to state legislatures, city councils and local boards, not to Congress, federal agencies or judges. The voters and their representatives can create new rights, but the court should not do so, he said.

Now, finishing his 11th year as chief justice, he has gone a long way toward writing his views into law.

Rehnquist does not always win. In 1992, he fell one vote short of overturning Roe vs. Wade and sending the abortion question back to the states.

He dissented last year when the court struck down a controversial Colorado voter initiative that would have revoked laws protecting gay men and lesbians from discrimination. And two years ago, he dissented when a 5-4 majority struck down a move by Arkansas voters to limit the terms of their members of Congress.

In the term just ended, Rehnquist was in the majority in all of the court’s major rulings, with the exception of a partial dissent in the computer pornography case decided last week.

That landmark ruling extending the free-speech principle to the Internet gave liberals their one cause for celebration.

Still, it is easy to exaggerate the importance of the court’s rulings, especially those involving the “structural arrangement” of government power.

Presumably, not many people roll out of bed in the morning anxious about the “balance of power” between the states and the federal government. Should they ponder the matter, they may not be comforted by the news that their freedom and welfare will be entrusted to lawmakers in Sacramento rather than those in Washington.

It remains doubtful that the court’s conservatives will radically alter the government balance of power in a way that affects ordinary Americans. So far, the Rehnquist majority has targeted only obscure laws or smaller parts of well-known laws.

For example, the justices last year voided a part of the federal Indian Gaming Regulatory Act that required governors to negotiate with tribal leaders over gambling.

Two years ago, the court struck down the federal Gun Free Schools Zone Act, characterizing it as unnecessary, feel-good legislation passed by a grandstanding Congress. Every state already had such a law on the books.

The Religious Freedom Restoration Act was probably unknown to most people until it was struck down last week.

In past opinions, Kennedy and O’Connor made clear they do not want to dramatically roll back federal power. Instead, they want to announce limits on new federal intrusions on states’ rights.

The court’s stand on states’ rights might affect some environmental measures, legal experts say, because they require compliance from state agencies.

Unlike the rulings on state versus federal power, the decisions involving individual rights can have an immediate impact.

Had the court upheld a “right to die,” terminally ill people could have chosen for themselves how to end their lives. The high court’s approach leaves the outcome in the hands of the states.

But then, it would have been most unlike the Rehnquist court to announce a radical change in the law based on a new interpretation of the Constitution.

Voters and their representatives are now debating “how best to protect dignity and independence at the end of life,” Rehnquist said. “In a democratic society, that’s the way it should be.

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Term’s Key Rulings

Here are key rulings of the Supreme Court’s term:

FREEDOM OF SPEECH

* Cable television operators must carry the signals of local broadcasters. Turner Broadcasting vs. FCC, 5-4.

* Judge’s order forbidding abortion pickets from approaching patients on a public sidewalk violates the 1st Amendment. Schenck vs. Pro-Choice Network, 8-1.

* Federal law that makes it a crime to transmit or display “indecent” messages on the Internet is unconstitutional. Reno vs. ACLU, 7-2.

STATES

* States may continue to hold sex criminals after they have completed their prison terms if they are believed to be still dangerous. Kansas vs. Hendricks, 5-4.

* States may continue to make it a crime for doctors to help terminally ill patients end their lives. Washington vs. Glucksberg, 9-0.

* States that receive federal funds to collect child support cannot be sued by single parents for poor performance. Blessing vs. Freestone, 9-0.

RELIGION

* The federal Religious Freedom Restoration Act requiring officials to give special deference to claims based on religion is struck down. City of Boerne, Texas, vs. Flores, 6-3.

* Public school tutors can again offer remedial education in parochial schools. Agostini vs. Felton, 5-4.

CONGRESS and WHITE HOUSE

* Congress does not have the power to compel local sheriffs to conduct background checks of handgun buyers under the Brady Act. Printz vs. U.S., 5-4.

* Members of Congress do not have standing to challenge in court the Line Item Veto Act. Raines vs. Byrd, 7-2.

* The president is not immune to civil lawsuits while in office. Clinton vs. Jones, 9-0.

BUSINESS

* The federal law against insider trading allows prosecution of “outsiders” as well as the “insider” corporate officials who trade on secret stock tips. U.S. vs. O’Hagan, 6-3.

* The 1986 law that allows whistle blowers to expose fraud against the government does not apply retroactively to matters before 1986. Hughes Aircraft vs. U.S., 9-0.

* Fruit growers and handlers can be forced to contribute to federal programs that pay for generic advertising. Glickman vs. Wileman Brothers, 5-4.

Source: Times Washington Bureau