William Rehnquist may be the most patient and unyielding radical ever to occupy high office in America. As a young Republican lawyer in the fifties and early sixties, he held aloft the banner of state sovereignty as a vehicle for resisting desegregation. In 1976 then-Associate Justice Rehnquist gave the right-wing states' rights movement one of its first symbolic judicial victories over the Warren Court legacy, writing for a narrow majority that state government employees are not entitled to federal minimum-wage protection. It was only a short-lived victory, thanks to a philosophical shift by Harry Blackmun, who in 1985 led the Court to repudiate Rehnquist--eliciting from an unchastened Rehnquist the tart prediction that state sovereignty "will, I am confident, in time again command...a majority of this Court."
On the final day of the current Supreme Court term, Chief Justice Rehnquist saw his prophecy fulfilled, at least for now. In Alden v. Maine the Court held, 5 to 4, that state workers may not turn to state courts for minimum-wage enforcement, citing sovereign immunity in its decision. This fall the Court will decide, on the same sovereign immunity grounds, whether state universities should be bound by federal civil rights laws.
The Court's latest action, taken with other decisions this term, highlights a troubling trend: This is a Court that is vigorous in the protection of states' rights but negligent when it comes to individual rights. The Court may be in step with a public skeptical of rights claims and critical of the federal government, but it abdicates its fundamental responsibility to protect those who can't protect themselves in the political process.
Thus the Court ruled that aliens have no right to object to being singled out for deportation because of their political views or associations, effectively playing to anti-immigrant sentiment by silencing millions among us. Or consider the ruling narrowing the Americans with Disabilities Act so that those who can be rendered "normal" by glasses, prosthetics, medication or other aids--yet still encounter prejudice in the workplace--are not covered. As Mary Johnson of Ragged Edge, the disability-advocacy magazine, points out, the Court has turned what Congress intended as a civil rights law into little more than a benefits package, with a narrow definition of eligibility pleasing to employers.
One grim measure of this Court's negligence in the matter of individual rights was a federal death penalty appeal handed down in the final week of the term. It involved a retired Army Ranger from Texas convicted of raping and murdering an enlisted woman. When it came time for sentencing, the trial court's instructions led jurors to believe that if they could not unanimously agree on execution, the murderer might serve less than a life sentence. Jurors were thus pressured into voting for execution when they might not otherwise have done so. But the Court agreed 5 to 4 that such misinformation should not stand in the way of execution. Earlier this term, the Court approved the execution of a Virginia man even though the prosecution had withheld evidence that might have spared his life. Only David Souter dissented. The Court's tolerance of the most grievous errors increases even as the list of innocent people released from death row grows. This state of the law satisfies no one more than Rehnquist, who, as a 26-year-old clerk to Justice Robert Jackson, complained of "old women" on the Court, too reluctant to pull the electric-chair switch.
To be sure, this Supreme Court term produced at least a few welcome results: The Court struck down Chicago's anti-loitering ordinance aimed at alleged gang members, and it ruled that California couldn't deny full welfare benefits to those newly arrived in the state. Sandra Day O'Connor, joined by the four moderates on the Court, wrote an opinion that holds schools responsible for insuring that students are not subject to sexual harassment, and Ruth Bader Ginsburg commanded a 6-to-3 affirmation of states' obligation to provide community-based care for the mentally disabled.
But taken as a whole, the Court's term was strikingly immoderate, with Bush-appointed Souter a more consistent defender of civil liberties than either of President Clinton's appointees. With Rehnquist, O'Connor and John Paul Stevens--who represent the conservative-to-moderate range of ideology among the Justices--slated for retirement, the Court's direction for decades to come will likely be defined by whoever controls the White House and the Senate in 2000. The campaigns just beginning to take shape should be seen as part of a crucial struggle to uphold the rights that Rehnquist and his cadre have worked so long and hard to destroy.