News and Features
Since William Rehnquist became Chief Justice of the United States, the Supreme Court has decided only three cases dealing with gay rights, and in all of them the Court has been relatively respectful (if not always supportive) toward those who are gay, lesbian or bisexual. The decision this June, however, upholding by a single vote the right of the Boy Scouts to dismiss an openly gay scoutmaster, reminds us that true equality for gay people will arrive only when the Supreme Court is not controlled by Justices whose moral view of gay people is negative.
Liberals believe that moral judgments should not affect governmental actions, because individuals have certain rights--to equality, to intimate association, to privacy--that are not connected to the substance of their actions. But in reality, legislative and judicial decisions are often shaped by the moral assessments of legislators and judges. A case in point is Bowers v. Hardwick, decided in 1986, just before Rehnquist became Chief Justice. In Hardwick the Supreme Court upheld the constitutionality of the Georgia sodomy statute, which criminalized oral or anal sex engaged in by any two individuals, regardless of the individuals' gender or sexual orientation. Although the legal question should have been whether the constitutional "right to privacy" prohibited a state from criminalizing intimate sexual conduct, a 5-to-4 majority framed the question as whether "the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." Chief Justice Warren Burger added a three-paragraph concurrence to underscore that condemnation of homosexual conduct was firmly rooted in Judeo-Christian moral standards.
During the next ten years, the country witnessed an increase in activism and visibility by the gay community. One symbolic aspect of this push for visibility was the decision of gay descendants of Irish immigrants to march in the St. Patrick's Day parades in New York City and Boston. The message these marchers wanted to send was clear: "Irish is good. Gay is good. Irish gay is good." But in a 1995 decision, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Supreme Court upheld the Boston parade organizers' refusal to allow the gay Irish group to march. The tone of the opinion, however, reflected a sea change in the Court's attitude toward homosexuality since Hardwick.
Justice David Souter, writing for a unanimous Court, explained that most parades are intended to express something, and the gay Irish group had a message: that gays "have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics." To Justice Souter, it was perfectly understandable that a group might wish to express such a message, which he described respectfully. The parade organizers did not wish to send such a message, however, and the First Amendment precludes the government from forcing people to utter speech they do not wish to utter.
While gay Irish groups have never managed to march in either the Boston or New York parade, gay people have succeeded in getting some 165 laws and ordinances enacted to prohibit government, private employers and private businesses from using sexual orientation as a basis for adverse actions. Proponents of these laws insist they are neutral on the morality of being gay and simply establish equality. But opponents contend that this liberal neutrality rhetoric ignores real moral disagreements over gay sexual conduct. People who believe homosexuality is morally wrong cannot adopt a "live and let live" attitude toward the passage of sexual-orientation nondiscrimination laws.
A federal court has ruled that Microsoft is a predatory monopolist and, stunningly, that the company should be broken into two parts. But the Microsoft opinion is the handiwork of one federal district court judge. Appeals lie ahead, and at the end of the road is the Supreme Court. The current Supreme Court majority has been reluctant to interfere with business conduct other than price-fixing. If George W. Bush should win the presidential election and appoint one or two Supreme Court Justices, we can expect yet more erosion of the antitrust landscape.
The Supreme Court once championed antitrust laws as valued tools to limit corporate power and to promote the autonomy, diversity and economic rights of people and firms without power. But the message of contemporary opinions is quite the contrary: Trust business, not government. It is fair to worry whether the Rehnquist Court has handed big business the license to do as it will, and if not yet, whether appointments by George W. Bush would complete the handover.
In one notable case, Liggett & Myers challenged the tobacco oligopoly by introducing low-priced generic cigarettes. In response, Brown & Williamson introduced a fighting brand, which it sold below cost to selected distributors for eighteen months for the sole purpose and with the effect of blunting Liggett's competitive challenge. Liggett sued for discriminatory and predatory pricing. A split Supreme Court threw Liggett's suit out. The strategy may have been unfair to Liggett, the Court said, but the antitrust laws have nothing to do with fairness, and price wars are good for consumers.
In the Microsoft case, District Judge Thomas Penfield Jackson declared Microsoft a predatory monopolist whose conduct has forestalled innovation and "trammeled the competitive process." Microsoft appealed from Jackson's judgment and confidently predicts a reversal. That confidence is not without some basis. The case will be heard either directly by the Supreme Court or, at the Supreme Court's choosing, by the Court of Appeals for the Washington, DC, Circuit, which two years ago overturned Judge Jackson's ruling that Microsoft's bundling of its web browser with its operating system probably violated a 1995 consent decree. Judge Jackson's final opinion in the current case documents Microsoft's predations in copious detail: its unremitting course of conduct and use of leverage to eliminate innovation that threatened to destroy Microsoft's operating-system monopoly.
When the Supreme Court hears the case, it is likely to find difficult questions of law: What standard applies to high-tech, fast-moving markets where a competitor's innovation can (in theory) wipe out a monopolist's power with sleight of hand? Indeed, can we even conceive of Microsoft as a monopolist when it faces the constant threat of technological obsolescence? Should courts or inventors/sellers decide whether browsers and operating systems are two products (and subject to the law against tying) or one integrated product and entitled to the deference of the judge? Should antitrust recede in the face of globalization and the unpredictable forces of technology? But note how even the formulation of the question is likely to inform the overall outcome. Is the real question whether Microsoft violated the law by strategies designed (and certain) to block rivals rather than serve computer users? Is the real, overarching problem: Whom should we trust--Microsoft or courts? Microsoft or antitrust law?
To complicate matters, politics has reared its head. The battle has spilled over to the Congressional arena and the race for the presidency. The country that prides itself on the rule of law could fall prey to the rule of money and the race for hegemony in the global economy. George W. Bush has already announced that he is not too fond of the antitrust laws, apart from the law against price-fixing. Microsoft has made huge contributions to both major campaigns, and it promises more to come. And Microsoft has, unsuccessfully, lobbied Congress to cut off the budget of the antitrust division of the Justice Department if it insists upon continuing its litigation against Microsoft.
But most significant is a President's power to appoint Justices to the Supreme Court. On the Court today there are Justices committed to upholding antitrust and Justices committed to chipping away its foundations. Justices John Paul Stevens and Antonin Scalia stand at opposite ends of the spectrum. Justice Stevens has an abiding concern about uncontrolled private power and is determined not to allow further erosion of the laws meant to control it. Justice Scalia has an abiding hostility to economic regulation and a resolve to minimize antitrust to protect "rational" private actors from "the sledgehammer of §2 [the monopoly law]." Scalia fears the power of government and never sees the power of business. Justice Stephen Breyer, a world expert in antitrust and economic regulation who has never been accused of antitrust populism, is the natural future voice for antitrust on the Court, but even Justice Breyer has been relegated to being a voice of dissent. On appeal from a Federal Trade Commission ban on California dentists' rules against discount advertising, Justice Breyer urged his colleagues to respect FTC findings and not to impose new burdens on antitrust plaintiffs, but he failed.
The Court is in delicate balance in matters of business power versus consumers. One or two Supreme Court appointments can make the difference.
Even as Chase Manhattan prepares to take over J.P. Morgan, the bank's past is returning to haunt it. Recently revealed documents show that Chase, which was already known to have helped the Nazis, aided slavery here at home as two of its predecessor banks worked with an insurance company to insure slave owners against loss. Chase is, as far as can be determined, the first company whose forerunners have been identified as aiding both the perpetrators of the destruction of the Jews in Europe and those who enslaved Africans and their descendants in America.
Chase currently faces a class-action lawsuit filed in the United States by Holocaust survivors and victims' relatives who say their assets were frozen by Chase during World War II. Chase seized bank accounts and safe-deposit boxes from Jewish customers in France and did not return or properly account for them after the war, according to Kenneth McCallion, a lead attorney in the suit. In addition, a Treasury Department report declassified a few years ago concludes that Chase's Paris branch served as a banker for the Third Reich. J.P. Morgan, whose Paris office also worked closely with the Germans, is named in the lawsuit as well.
About a hundred years earlier, two US banks that were later taken over by Chase were described in an 1852 information circular as servicers of insurance policies issued on the lives of slaves. Titled "A Method by Which Slave Owners May Be Protected From Loss," the circular, put out by the National Loan Fund Life Assurance Company of London, describes, among others, The Merchants Bank and The Leather Manufacturers Bank, both of New York, as having the legal authority "to accept risks, adjust and pay claims." The Merchants Bank merged in 1920 with The Bank of the Manhattan Company, which in turn merged with Chase in 1955, according to the New York State Banking Department and Chase's website. The Leather Manufacturers Bank merged with The Mechanics National Bank in 1904, which then merged with Chase in 1926.
Deadria Farmer-Paellmann, the lawyer whose research earlier this year forced the Aetna Insurance Company to make a public apology for writing slave insurance policies, uncovered the documents exposing Chase. These revelations are certain to bolster the growing movement for slavery reparations.
The presidents of the two banks are listed on the circular as members of the New York board of directors of the London insurance company. The circular names medical examiners in Virginia, North Carolina and Washington, DC, who were authorized to examine slaves and also offers details about the insurance policies. For example: "A Slave aged 30 years can be insured for $500, for a year, for $11.25; and if he dies, the owner, although deprived of the revenue of his labour...will still not be unrecompensed for his loss; for there will still remain to him--not his Slave--but the $500 which constituted his value...." While it has still to be determined whether the two banks actually serviced any policies for slave owners, the existence of the circular proves that the banks actively sought and were part of such business.
Jim Finn, a Chase spokesperson, said that his organization needs more time to study the circular and related materials before he could comment. Farmer-Paellmann, who is continuing her research, said, "My hope is that if archival records show that policies were written, then Chase will apologize for helping to maintain that crime against humanity and pay restitution into a trust fund to benefit heirs of Africans enslaved in America."
In early September Chase agreed to permit an investigator who had probed Swiss banks for their Holocaust-era activities to review its records to determine how Chase had helped the Nazis. Chase should immediately open its archives to slavery researchers as well. Only then will a full record be available to determine what reparations, if any, should be paid.
In the area of labor law it's not the Supreme Court that's the primary problem, it's the law itself. If the toothlessness of the National Labor Relations Board allows the bosses to violate the law at will, with no truly serious penalty, there is nothing any Court, even one full of William Kunstlers, can do to bring back a meaningful right to organize.
So my concern is not what the Supreme Court might do under a Bush Administration. It's highly unlikely that the present law will change. My worry is that the conservative Justices Bush might appoint will be around long after he leaves office. If a more progressive administration succeeds him and pushes through new labor law that would give US workers a real right to join unions, a Bush Supreme Court packed with Antonin Scalia and Clarence Thomas types would gut it. Suppose, for example, that a future Democratic Congress, stripped of a filibuster, passed a law similar to Canada's, where if enough workers sign cards saying, in effect, they want a union, there is no election--a union is in place. The Bush Supreme Court might declare that such a law violates the employer's First Amendment right to present the anti-union view, to "speak" to (i.e., to intimidate, threaten) the workers before they sign the cards.
Right now, however, what hurts labor, day to day, is the wins and losses in the lower courts. That's because in labor and civil rights, the Rehnquist Court sometimes works by proxy, and many of the lower appellate courts (e.g., the District of Columbia, the Fourth Circuit) are worse. In the 1999 term, the Supreme Court gave opinions on only seventy-five cases, mostly ones that the Justice Department asked it to take. Just by turning down or not reading cases, the Court can effectively "rule" without ruling. Consider the one real labor-law reform attempted by the Clintonites: to stop federal purchases from employers who use striker replacements. The right-wing Court of Appeals for the District of Columbia Circuit struck down Clinton's power to do this by regulation. The Supreme Court refused to hear an appeal. The Clintonites probably would have lost anyway, but this is a good example of how a conservative Supreme Court, by proxy, can block an attempt to restore union power.
Still, the Rehnquist Court has handed down some bad decisions. In Lechmere v. NLRB (1992) Justice Thomas's opinion was very touchy about the employer's property rights in a union organizing drive. It made clear, again, the policy of keeping nonemployee union organizers off the property, except in circumstances (vague) when there is no other way to communicate with workers.
Apart from strict labor cases, there are many rulings from the Rehnquist Court on class actions, federalism and other areas that indirectly shrink labor's power. Why does the High Court's taste for states' rights seem to whet when it can hurt a public union--as it did in Alden v. Maine (1999)? Apart from its states' rights silliness, the Alden opinion bars more than 4 million state workers from suing under federal wage laws in state court.
Alas, the real advance in workers' legal rights has come mostly in state courts. Some state courts have set limits on certain types of firings. That's something, but it does little to help Americans raise wages or reduce income inequality.
To be fair, in civil rights, we owe a bit to the Rehnquist Court, and to Scalia especially. In cases in the late eighties, the Rehnquist forces so vigorously whacked away at Title VII and related laws that the Democratic Congress was roused to action. Instead of just reversing these bad cases, Congress expanded the remedies for Title VII violations. Now we have jury trials and punitive damages. We owe at least a little thanks to Justice Scalia. Almost a year ago, a former clerk of the Court complained to me about how badly we labor types presented those cases in the eighties. "And," she said, "that's why we got those bad rulings from Scalia." Ah, but thanks to our bungling, we expanded civil rights remedies.
Only now, if we bungle with a Republican Congress, such mischief would linger on. This may be so with the Americans With Disabilities Act. Incredibly, last year the Court parsed the term "disability" to exclude, arguably, even an amputee with prosthetic limbs. In his majority opinion, Justice O'Connor tried to "intuit" what Congress "must have meant"--something that conservatives, as formalists, are famous for saying they never do.
Never, except when it hurts disabled workers. But in labor law especially, judges often rule from scratch. It often seems that the whole country has, without knowing it, drifted into a civil law, European-type legal system, in which we don't use precedent in the old Anglo-American common law way, for the simple reason that there isn't any precedent--especially with new laws like ADA and in the realm of civil rights, where the judges have to "make it up" the most.
Precisely because we have to make it up more and more, we should care who's on the Court. In labor, especially, by making it up for the decades to come, the Rehnquist Court et al. will help decide how much the rest of us Willy Lomans can get out of the lives we so recklessly throw away at work.
George W. Bush has publicly cited Justices like Antonin Scalia and Clarence Thomas as the kind of "strict constructionists" he will appoint to the Supreme Court. Scalia and Thomas have long been the favorites of right-wing religious, political and legal activists eager to see the Supreme Court roll back decades of progressive rulings.
People for the American Way Foundation recently released Courting Disaster, the result of a six-month analysis of the concurring and dissenting opinions of the two Justices. It asks, "If these opinions were shared by a majority of the Court, how would that change the outcome of the Court's decisions?" The answer is chilling. If those angry dissents and minority concurring opinions were majority rulings, the result on issue after issue would be a radical, reactionary shift in US law.
Many people are worried about the Court's future rulings on reproductive rights. It's true that Justices Scalia and Thomas are eager to overturn Roe v. Wade, and they need only two more votes to do it. Maybe only one--Justice Anthony Kennedy's vote supporting the ban on so-called partial-birth abortion has been interpreted as an indication that he is having doubts about his 1992 vote reaffirming Roe v. Wade. But much more than reproductive rights is at stake.
As the contributors to this issue document, the Supreme Court is already dominated by conservative Justices who are aggressively promoting a troubling new theory of federalism and states' rights that is drastically restricting the power of Congress to protect Americans' rights and to address serious national problems. But even this conservative activist majority has frequently not been willing to go as far as Scalia and Thomas want. And that's why the prospect of a Scalia-Thomas majority on the Court is so ominous.
Here's just one example: In a 1994 voting rights case, Justices Thomas and Scalia advocated a position that, according to four of the other Justices, was so "radical" it would have meant overturning or reconsidering twenty-eight previous Supreme Court rulings that the Voting Rights Act of 1965 should be interpreted to prohibit racial discrimination in all aspects of voting.
There's much more. A Scalia-Thomas majority would exempt elections for state judges from all provisions of the Voting Rights Act, permit sex discrimination in jury selection, eliminate affirmative action, restrict remedies for discrimination while making it harder to prove discrimination in the first place and hold that improper and unnecessary institutionalization of disabled persons would no longer be considered a violation of the Americans With Disabilities Act.
Religious liberty would suffer under a Scalia-Thomas majority hostile to the principle of church-state separation. Such a Court would overturn a series of precedents protecting the rights of students to be free from religious coercion in public school settings. The floodgates would be opened to direct government funding for religious schools.
A Scalia-Thomas majority would weaken the right to strike and bargain collectively, make it easier to fire workers for political reasons and allow employers to deceive workers about the solvency of benefits plans. Scalia has ridiculed laws that protect workers from sexual harassment.
The federal government would be barred from stopping the destruction of endangered species on private land. Local governments' power to protect the environment would be restricted.
Campaign finance reform would be virtually impossible under a Scalia-Thomas Court, which would throw out any and all limits on campaign contributions and spending.
Sensible gun control legislation would be struck down.
What is at stake is the legal and constitutional framework under which the nation will operate for decades to come. Radical right leaders know they're just one election away from winning their entire political agenda, and they're mobilizing voters with the prospect of a right-wing-dominated Supreme Court. It was their vocal "no more Souters" campaign that led George W. Bush to explicitly name Scalia and Thomas as his models. And it has now been six years since the confirmation of the Court's most recent appointee, Justice Stephen Breyer. Only once in our history--177 years ago--have we gone so long between appointments.
Indeed, the future of the Supreme Court is the most important issue in the most important election year since 1932. Progressive Americans should treat it that way. The radical right does.
Like the short-lived "Era of Good Feelings," which united all political factions behind the re-election of James Monroe, a First Amendment Era of Good Feelings unites all factions on the Rehnquist Supreme Court behind vigorous judicial protection of free speech. But, like the original Era of Good Feelings 180 years ago, the surface First Amendment consensus on the current Supreme Court conceals a crucial fault line that will shape the nature of free speech in the twenty-first century. At stake is whether the twenty-first-century First Amendment will be a protector of the powerful or a resource for the weak and disfranchised. The current Court is closely divided between First Amendment Disablers, like Justices Antonin Scalia and Clarence Thomas, who treat the free-speech clause as if it were a physical barrier walling government off from the act of speech; and First Amendment Idealists, like Justices John Paul Stevens and Ruth Bader Ginsburg, who view Madison's handiwork as the articulation of an ideal permitting government to regulate the speech of the extremely powerful when necessary to defend the Madisonian vision of a marketplace of ideas open to all, regardless of wealth.
Most of the time, the distinction between a First Amendment Disabler and a First Amendment Idealist is irrelevant, since most First Amendment cases are decided the same way under both approaches. That explains why, in the 100-odd First Amendment cases decided during the Rehnquist era, the scale has tilted so markedly toward free speech (occasionally over the Chief Justice's dissent). In 1988, two years into the Rehnquist era, the Chief Justice refused to allow Jerry Falwell to sue Hustler over a tasteless parody that insulted Falwell's mother. That unanimous decision set the tone for the next twelve years. This past term the Court invalidated Congress's efforts to confine sexually provocative speech on cable television to late-night broadcasts, reasoning that a rule allowing parents to block the transmission on a household-by-household basis is a less drastic interference with free speech. Last term, the Court struck down Congress's effort to ban the advertising of casino gambling on television. The term before that, the Court struck down Congress's effort to ban "indecent" speech from the Internet. Although the Court displays an occasional free-speech blind spot--witness its almost comic inability to deal with nude dancing, and its not-so-comic decimation of the student press--the grand free-speech alliance between the Court's liberal and conservative wings that was forged a little more than a decade ago in the flag-burning cases continues to hold.
In at least three important free-speech contexts, though, the differences between Disablers and Idealists can be crucial. The future of campaign finance reform depends on whether the twenty-first-century Court will be staffed by First Amendment Disablers or First Amendment Idealists. Until now, the Disablers have had the upper hand, with unfortunate results for American democracy. In Buckley v. Valeo, the Court gave the rich an immense electoral advantage by ruling that the First Amendment disables government from attempting to limit campaign spending, no matter how much money is involved and no matter how disproportionate the resources of the candidates may be. Restrictions on the size of campaign contributions were grudgingly permitted, however, in order to prevent corruption. A second distinction was made in Buckley between campaign speech, overtly aimed at influencing the outcome of an election, and issue advocacy, ostensibly aimed at persuading people about more general issues. While the funding of campaign speech was deemed subject to regulation, the First Amendment was held to disable government from all efforts to regulate the funding of issue advocacy.
The razor-thin distinctions in Buckley between campaign spending and campaign contributions, and between campaign speech and issue advocacy, have been disastrous. Political campaigns have been caught in a squeeze between an uncontrollable rise in the demand for campaign cash and significant limits on legitimate sources of supply. The net result has been a vast gray market in campaign funding. Huge amounts of unregulated money are spent on phony issue advocacy that is nothing more than unregulated campaign spending. Even larger sums are diverted to political parties as nonregulated "soft money," although everyone knows that the funds are disguised campaign contributions.
Given the collapse of the regulatory regime, virtually no one believes in the Buckley precedent anymore. The case is a rotten tree that is about to fall--but no one knows in which direction. If the First Amendment Disablers prevail, almost all restrictions on campaign funding, including most restrictions on campaign contributions, will be deemed to violate the First Amendment. If First Amendment Idealists prevail, reasonable limits on campaign spending designed to allow ordinary people to play a role in American democracy will have a real chance to succeed.
The Justices appointed by the winner of the 2000 presidential election will also determine the structure of American media in the twenty-first century. We are living through a profound consolidation of media ownership. When the dust settles, a handful of corporations will control virtually all of our television, cable, radio, newspapers, magazines, book publishers and movies. Everything that gets said on our media networks or gets sold in our bookstores and newsstands will go through a very few corporate boardrooms. If First Amendment Disablers prevail, government efforts to restructure the ownership and control of our media monopoly, perhaps by arguing that there is a First Amendment antitrust doctrine that forbids oligopoly control over communications, will be doomed. If First Amendment Idealists prevail, efforts to restructure the media to assure a multiplicity of voices will have a real chance to succeed.
Finally, much important speech in a democracy is subsidized. Public television, legal services lawyers, doctors in family planning clinics, professors in public universities and government-supported art museums are all examples of crucially important subsidized speakers. The current Court is deeply divided over whether government may place conditions on the aid it gives to those speakers. Disablers react by arguing that since the government is actually enhancing the quantity of speech, the First Amendment has little or no role to play in controlling the strings government chooses to put on the money. Thus, according to disablers, doctors in federally funded family-planning clinics can be forbidden to discuss abortion with their patients. The Court narrowly upheld such a restriction by a 5-to-4 vote. Idealists, on the other hand, view government efforts to control subsidized speech as a violation of the First Amendment. They viewed New York City Mayor Rudolph Giuliani's recent effort to control the art exhibited at the Brooklyn Museum as an easy First Amendment case.
At stake, therefore, in the 2000 presidential election is not whether we will have a vigorous First Amendment. That battle, at least for the foreseeable future, has been won. It is whether the First Amendment will become an ally of the rich and powerful, insulating their control over our politics and our media from government regulation, or whether the First Amendment will emerge as a vehicle for the defense of a true free market in ideas open to all, regardless of wealth.
Between 1947 and 1971, three Supreme Court decisions forged the law of church/state separation that remains largely in place today, though each case spawned controversies and doctrines that have threatened to engulf the principles for which the cases are remembered. The current Supreme Court is so divided on these fundamental questions that the appointment of one or two conservative Justices could well tip the balance and jettison the important principles enunciated in the three cases.
The first--Everson v. Board of Education (1947)--upheld the use of public funds to pay for the transportation of children to religious schools. The opinion, written by Justice Hugo Black, sets forth constitutional doctrine that still governs the Court's interpretation of the First Amendment provision that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Justice Black wrote:
The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws, which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organization or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State."
In upholding the New Jersey statute providing funds to bus parochial school students, Justice Black expressed concern for the safety of the children walking on highways. This "child benefit" concept provided a basis not only for noncontroversial forms of government aid to parochial schools, such as providing police and fire protection, but also for more controversial forms of assistance, such as the issuance of publicly supported bonds to finance the construction of facilities in church-related colleges and universities, the provision of diagnostic and remedial services, and various forms of teaching aids to parochial schools.
The Everson case highlighted another potential tension in the Constitution's religion clauses--that the denial of certain benefits to parochial schools might be viewed as depriving the schools of equal protection or abridging the children's rights, particularly their right of free exercise of religion.
The Rehnquist Court has revived Ronald Reagan's attempts to gut the New Deal, Great Society and civil rights laws enacted to help the have-nots of American society. Its weapon of choice has been the states' rights doctrine. Just as during the New Deal, when this doctrine was also invoked against the expansion of federal power that was used in the interests of ordinary people, the Rehnquist Court's seemingly neutral states' rights rhetoric and argumentation have been a fig leaf to cover up more tangible interests like race and money.
This is not new. Throughout our history, states' rights rhetoric has been used for regressive causes. It has been an especially favored strategy since the Civil War, because the two great transfers of power to the federal government at the expense of the states, at which this strategy has been aimed--the post-Civil War amendments and the New Deal--have also been reform movements threatening conservatives with respect to race and class.
The anti-Washington leader on the Court is Chief Justice William Rehnquist. Raised in a Roosevelt-hating family, he has been an archconservative since his earliest days. His first opportunity to strike at federal power came in 1976 in
National League of Cities v. Usery, a case involving the 1974 amendments to the Fair Labor Standards Act, which extended minimum-wage and maximum-hours requirements to state and local governments. Cobbling together a 5-to-4 majority, he got the Court to strike down the 1974 extension.
For authority, Rehnquist looked to the Tenth Amendment, which provides that "the powers not delegated to the United States by the Constitution...are reserved to the states." The amendment does not, however, specify what is "reserved," so Rehnquist created a new doctrine based on the "policy" of the Tenth Amendment, which he said authorized the courts to prohibit the federal government from regulating the states' "traditional functions" if doing so "impaired their sovereignty" and "their ability to function effectively in a federal system."
The result was judicial confusion, as courts struggled with these vacuous criteria. After nine years, the Court overruled National League of Cities, but in 1990 the tide turned again. Avoiding constitutional issues, a 5-to-4 majority in Gregory v. Ashcroft interpreted a federal law banning age discrimination as not applying to state judges.
After Clarence Thomas joined Anthony Kennedy, Sandra Day O'Connor and Antonin Scalia on the Court in 1991, cementing the conservative majority, the constitutional assault on federal power went into high gear. The first target was a radioactive-waste-disposal statute, which was based on a compromise that the states themselves, including New York, had hammered out. The act imposed sanctions on those states that didn't implement the statute, and for this reason, the majority struck it down in New York v. United States (1992). Unable to rely on specific language in the Constitution, the majority used its own conception of the constitutional "framework" and "structure," and condemned the act for "commandeering" state officials to implement it, ignoring in the process numerous historical examples of state implementation of federal laws. "Accountability is...diminished" by such state enforcement, said Justice O'Connor for the Court, arguing that state officers who had to implement burdensome federal directives would be blamed for them. The argument is ludicrous--people in the radioactive-waste business knew the rules were set by the Feds. The Court used the same dubious "accountability" reasoning five years later in Printz v. United States to slap down the Brady gun control bill's requirement that local law enforcement officers check the backgrounds of prospective gun purchasers.
The hollowness of the conservatives' concern for states' rights was revealed in the New York v. United States decision. The radioactive-waste law had been promoted by the states themselves. But Justice O'Connor rationalized that the anticommandeering principle was not for the benefit of the states but to preserve "the liberties" of the people; the states' consent to the law was irrelevant. But how are the people's "liberties" protected when the wishes of their elected representatives are ignored? And is not accountability diminished if those representatives cannot act as they believe their constituents want?
The conservative majority's fickleness toward state interests is not a rare phenomenon. They have had no trouble striking down hundreds of state and local affirmative action plans, voluntary desegregation plans and electoral districting plans that created majority-black districts. And they haven't hesitated to strike down zoning and environmental laws in the name of property rights.
Four years after New York v. United States was decided, the trickle of antifederal decisions became a flood. It began with an attack on the commerce clause, the source of federal power over the national economy. Recognizing the interrelatedness of almost all parts of the economy, the Court had upheld every assertion of federal power under the commerce clause since 1937. In 1995 that changed. In Lopez v. United States the usual 5-to-4 majority struck down a federal law criminalizing the possession of guns in a school zone, because no economic transaction was involved and there was no Congressional finding of an effect on interstate trade. The obvious impact of school violence on the national economy was dismissed, and the fact that most guns move in interstate trade was ignored. Four years later, in United States v. Morrison, the same 5-to-4 majority used the same argument to strike down the Violence Against Women Act: It was not an "economic" matter, even though there was "a mountain of data" that violence against women costs the economy billions each year. Nor did the Court give any weight to the overwhelming state support for the act.
In 1996 the Court also resurrected a state sovereign-immunity doctrine that had been repudiated just seven years earlier. The Eleventh Amendment denies federal courts jurisdiction over suits by citizens of one state against another state. Over the next four years, the conservative bloc used this doctrine, which is based on the now discredited "the King can do no wrong" philosophy, as the basis for allowing a state to halt damage suits against itself by any person, even in state courts, and even if the state engages in what is ordinarily private business that wrongly damages someone. Nothing in the language of the Constitution creates such an immunity, and certainly not for federally created rights. That did not faze these Justices, however, all of whom have regularly excoriated liberal judges as "activists" when the latter sought to promote individual rights and did not stick closely to the text.
The next year, the conservatives turned to the Civil War Amendments. Section 5 of the Fourteenth Amendment authorizes Congress to enforce that amendment by appropriate means. In 1990 the Court narrowly adopted a Scalia opinion overturning a twenty-seven-year-old doctrine by which religious minorities were exempt from having to comply with unnecessary burdens that interfered significantly with their worship (Employment Division v. Smith). Congress responded by almost unanimously passing the Religious Freedom Restoration Act (RFRA) to reinstate that possibility.
It didn't last long. In a 6-to-3 decision, the Court ruled that Congress had no power to enlarge constitutional rights beyond the limits the Court had set. RFRA failed as a remedy, according to the Court, because it burdened too many state activities too much--even though the states had lived comfortably for over a quarter-century with the doctrine RFRA sought to reinstate.
This past term, the conservative majority struck twice at Section 5, once in dismissing a suit by older workers under the Age Discrimination in Employment Act (Kimel v. Florida Board of Regents) and again in the course of overturning the Violence Against Women Act, despite support for the act from thirty-six states. This coming term the Court will consider suits by state employees against a state for violating disability rights statutes; their prospects are bleak.
There have been a few isolated losses for the states' rights bloc: Kennedy jumped ship to make a 5-to-4 majority to strike down a state term-limits law, and this past term the Court upheld a law banning the sale by states of private data collected from driver's-license applications. But such decisions have been few and far between.
Academic commentators disagree on how harmful the conservatives' federalism rulings have been. They have unquestionably spawned confusion and litigation over federalism issues, thereby overburdening a federal judiciary that is already creaking under the weight of its caseload. And a good number of Americans--how many is impossible to tell--have been denied a meaningful remedy for blatant violations of their rights under federal law.
One thing is clear: All of US history demonstrates unambiguously that have-nots and outsiders fare poorly at the state level. The Rehnquist Court's paeans of praise for state government are belied by reality. Voting turnout in state and local elections is notoriously low. Many state legislators are ill-paid part-timers without staff, and are at least as susceptible to lobbyists as Congress, if not more so. Conflicts of interest are rife--one recent study found that one-fifth of state legislators serve on legislative committees that oversee their private businesses. And concern for the poor, the weak and people of color is often negligible or nonexistent.
If the current federalist assault on the federal government continues--and if George W. Bush becomes President it will--those already shortchanged by our society will do even worse.
This past summer, I wrote in this space about the historical limits of third-party presidential candidacies--the failure not only of such candidates to get a significant percent of the vote, but also of their parties to build on their moment in the sun. Within minutes, the magazine was deluged with protest e-mails from Nader fans. Even my father wrote in to put in a last hurrah for Henry Wallace and his 2 percent in 1948. In a particularly nutty syndicated column, Alexander Cockburn implied that I had been contacted by the Gore campaign in order to "bully" leftists into staying with the Dems. All this high drama, even though I did not urge people to vote for Gore or say I was planning to do so myself! What I did point out was that Nader and the Greens ought to acknowledge that there are (still!) some real differences between the parties and to explain more persuasively why the risk of a Bush win--to choice, the Supreme Court, affirmative action--was worth taking.
All these issues flared up again in early September, when the San Francisco Chronicle reported that Patricia Ireland, head of NOW, had "lashed out" at Nader for neglecting feminist issues. Next day, Nader fired back: "I have been fighting for women's rights before Patricia Ireland knew the term"--and I'm old enough to be your father, little missy! he didn't add. Nader mentioned credit discrimination, unnecessary operations and auto-dealer ripoffs as issues pioneered by him and ignored by feminists. Wrong: NOW led the fight against sex discrimination in credit back in the seventies. Unnecessary surgery--hysterectomies, caesareans, mastectomies--has been a continuing preoccupation of women's health groups. And to suggest that organizations fighting antichoicers and father's rights-ers, rape, domestic violence, harassment, bias at school and job, in Social Security and the courts, should focus instead on auto-dealer ripoffs... well, let's see: legal abortion, cheaper car, Violence Against Women Act, cheaper car--where would you place your limited resources?
I was all set to write a column (another column!) about Nader's tone-deafness to feminism. Why, when you consider how courtly he is to the right--Pat Buchanan, Bill Bennett, even Phyllis Schlafly--can't the man show a little respect? When I reached Nader by phone, though, I have to say he was much more nuanced than I expected, not to mention livelier and more amusing. He waved away both Ireland's remarks and his own as journalist Carla Marinucci's doing--"She likes to ask you a provoking question when she knows you're in a hurry." He acknowledged that, yes, "Bush is worse than Gore on some issues--on abortion and gun control for instance, their differences are real, not rhetorical." He defended his feminist record ("I've done a lot more than I get credit for") and rather plaintively wondered, "Why do we hassle each other with these little differences when basically we're on the same page?" before launching into a description of a particularly grotesque episode of the Howard Stern show, involving a single mother being spanked with two dead fish. "Why don't women go after him? I wrote to NOW about this!" I wouldn't say Nader is particularly well-informed about what feminists are up to (attacking misogynous pop culture, including Stern, is a perennial enthusiasm--NOW has a huge media activism section), but I didn't hear in his conversation the note of white-male irredentism and cultural conservatism masquerading as "class politics" I hear from some of his supporters.
"I think Gore's got it," Nader predicted. "He's got Bush on the defensive now, and I'm slamming Bush on issues Gore won't touch, like corporate welfare, the Texas Rangers deal--you know what that is, don't you?" (Yes, I lied.) "So we may end up with the best of all worlds. The Greens will get the 5 percent and the federal funds, and I'll become a watchdog on Capitol Hill for all those great progressive organizations people pay their twenty-five dollars to join..."
"So, you're saying that in the best of all worlds Gore wins and you get the 5 percent?"
"No, that's the second-best world. In the best world, I win the White House, and Gore gets the 5 percent."
I still think Nader dismisses too lightly the threat Bush poses to women's rights and civil rights generally. Having said that Gore was genuinely better on abortion, Nader seemed to deny that this would matter: Roe v. Wade "is a settled issue. We're not going back to the back alley again. Prochoicers are too strong." But if prochoicers are so strong, how come abortion is already encumbered with more than 300 state restrictions, most carrying criminal penalties? How come George W. Bush signed eighteen antiabortion bills into law in 1999?
There's a reason my friend Ellen DuBois at UCLA tells me she knows lots of progressive couples in which the woman is furious at her man for backing Nader, and why Nader has almost no black support in polls. About electoral politics, Nader seems insufficiently skeptical: On the one hand he declared the Democrats "unreformable from within"--too corrupted and controlled by corporate interests and donations. In the next breath he talked about building the Greens to push the Dems left--as if the corporate powers he just so vividly depicted wouldn't simply flex their own muscles more vigorously.
I still think third-party politics is mostly a crock, but then, so is two-party politics. Nader may be a 67-year-old pre-multiculti sort of a guy, but he is so right on so many issues--he is the only candidate who talks about structural poverty, healthcare for all, abolishing the death penalty, cutting the military, ending the drug war, diversifying the media. I wouldn't lift a finger that would help elect George W., but I'm taking a leaf from Molly Ivins, who advises voters to take advantage of our antiquated Electoral College system and go for Nader if they live in a state that's solid for Bush or Gore. If Gore is still up in New York on Election Day, I'm voting for Ralph. I reached Patricia Ireland just as I was finishing this column, and she says that's a great idea.
Selma, Alabama, a touchstone in the civil rights movement, is frozen in
a way that confounds onlookers.