Cover of October 9, 2000 Issue


Acting for Justice

The two entertainment unions, already angered over runaway production, have tenaciously met the challenge and escalated the fight.

The Threat to the Net

Open access to the broadband Internet is essential if we are to insure that a diverse range of voices has a chance of reaching out to citizens in the new era of high-speed communic...




Our readers and Ellen Schrecker and Maurice Isserman on "The Right's Cold War Revision."


Up for Grabs

No matter what the next President or Congress may do or think, among the three branches of the federal government, the Supreme Court is often first among supposed equals.

States’ Rights Rise Again

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. Read More

Is the Wall Crumbling?

The current Supreme Court is so divided on fundamental questions of separation of church and state. that the appointment of one or two conservative Justices could well tip the b...

In Business We Trust

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 ...

Moral Law, Changing Morals

A recent decision 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.<...

The Killing Machine

For many of the 3,682 men and women on death rows across the nation, and their families, this election is literally a matter of life or death. With one or more appointments to the Supreme Court, the next President will probably change the balance of power in the Court's review of capital cases. The Court could play a greater role in restricting the use of the death penalty, or it could give the states free rein to carry out more and more executions. Neither George W. Bush nor Al Gore is going to appoint Justices like the late William Brennan and Thurgood Marshall, who believed that capital punishment violates the Constitution's prohibition of cruel and unusual punishment. But the next President's appointments will have an enormous impact on how much death is used as a punishment in the next several decades and the fairness of the process by which people are denied their lives and liberty in the criminal courts. Bush has expressed his admiration for Justices Antonin Scalia and Clarence Thomas, who have vigorously maintained that the Constitution allows states to execute just about anyone--children, the mentally retarded, even the innocent--and provides virtually no protections, not even a decent court-appointed lawyer, to a person facing death. Their approach to capital cases is much like the one taken by judges in Texas, which dispatches people to its busy execution chamber in assembly-line fashion. Bush has defended the Texas system, claiming that the condemned had "full access to the law," while presiding over 144 executions during his six years as governor. No other state has carried out more than eighty executions in the past twenty-five years. Al Gore will probably appoint moderates like the two Justices appointed by Bill Clinton, Ruth Bader Ginsburg and Stephen Breyer, whose votes reflect their views that the Constitution restricts the ways in which states may impose death and that the federal courts have a role to play in deciding what those restrictions are and in keeping the death penalty within them. Many of the Court's most important capital decisions have been decided by a 5-to-4 vote. In those cases the outcome has usually been determined by Justices Sandra Day O'Connor and Anthony Kennedy. When they join with Scalia, Thomas and Chief Justice William Rehnquist, the death sentence is upheld--as in two 5-to-4 decisions in Virginia cases this year. In one of these, Weeks v. Angelone, they upheld a death sentence even though the judge misled the jury regarding how it was to reach its sentencing decision. In the other, Ramdass v. Angelone, the defendant was not allowed to tell the jury that he would not be eligible for parole if sentenced to life in prison instead of death. Ginsburg, Breyer, John Paul Stevens and David Souter dissented in both cases. If either O'Connor or Kennedy joins the Court's four moderates, the outcome is different. Just how delicate the balance is was illustrated by the 1989 case of Penry v. Lynaugh. John Paul Penry is a mentally retarded man sentenced to death in Texas. Justices O'Connor and Kennedy were part of a 5-to-4 majority holding that the Constitution does not prohibit the execution of the mentally retarded, but Justice O'Connor cast the critical fifth vote for setting aside Penry's death sentence because the jury was not instructed that his retardation should be considered in mitigation. ]]> ]]> Read More

Power Shift Down–The Lower Courts Count

Much of the debate swirling around the upcoming election focuses on the next President's power to shape the Supreme Court--but it would be a mistake to overlook the enormous impact the next President will have on the appellate courts as well. Each year the Supreme Court decides fewer cases. In the seventies and eighties, it routinely heard about 150 cases a year. The typical docket for the Rehnquist Court is less than 100. This trend toward fewer Supreme Court rulings gives the appellate courts vastly more power. In fact, some experts call the appellate courts "regional Supreme Courts" because so often they become the forums of last resort for plaintiffs bringing civil rights, abortion and environmental litigation. Appellate court appointments are rarely constrained by the kind of senatorial influence and patronage that frequently govern the selection of district court judges, so the President generally has a freer hand in making these appointments. Conservative activists have long been keenly aware of the importance of the appellate courts. Presidents Reagan and Bush both made it a priority to fill appellate court vacancies quickly, ultimately packing them with right-leaning judges whose agendas were to reverse years of progress on civil rights and the environment. Reagan and Bush appellate court appointees include such well-known ideologues as Robert Bork, Daniel Manion, Douglas Ginsburg, Frank Easterbrook and Alex Kozinski. Because of the critical importance of the 179 federal appellate seats, Senate Republicans have deliberately delayed confirmation of nominees during the Clinton era. Of the thirty-four judges confirmed last year, only six were to courts of appeals. This year is unlikely to be better; ultraconservatives in the Senate will do everything possible to avoid filling the twenty-two appellate court vacancies until after the presidential election. Consequently, even after seven years of Democratic rule, nine of the thirteen courts of appeals remain in the control of Republican appointees. Many of these judges, such as those on the Fourth and Seventh Circuits, have shown open hostility to civil rights, striking down such crucial protections as affirmative action, the Violence Against Women Act and the 1966 Miranda decision. Judicial hostility to environmental protections is also common. In 1999 two panels of the Court of Appeals for the DC Circuit handed a victory to polluters, overturning longstanding EPA standards reducing the ozone that exacerbates lung disease and asthma. In that case, the Reagan-appointed judges adopted an argument set forth by a conservative lawyer, even though the argument ran contrary to sixty years of legal precedent. Senate Republicans have also created a judiciary that is shamefully unrepresentative of the public it serves. It wasn't until this past summer that the number of African-American judges serving on the appellate courts reached the same level as when President Carter left office twenty years ago. More than half the country's circuit courts lacked either an African-American or a Latino jurist--or both--at the end of 1999. The conservative Fourth Circuit (which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia) has never had an African-American judge, despite the fact that the region has the largest percentage of African-Americans in the general population of any circuit. While North Carolina Senator Jesse Helms is notable for actively blocking the nominations of African-American judges to the Fourth Circuit Court, other GOP senators have contributed to the delays in appointments across the federal judiciary. In the past year the Senate set a record for the longest delay imposed on a nominee: Ninth Circuit Judge Richard Paez, a Hispanic-American, was forced to wait more than four years before the Senate finally scheduled a vote and confirmed him this year. Unfortunately, in many ways the Clinton Administration has acquiesced in the Senate majority's crusade to strip away presidential appointment power. Clinton's strong desire to avoid confrontation over judicial appointments has led him to draw nominees from a limited pool, for the most part avoiding public interest lawyers and those in private practice with extensive pro bono experience. The regrettable result is that the Clinton Administration has failed to restore balance to the federal court system after twelve years of strongly ideological conservative appointments. Americans deserve better. We count on federal judges to protect our civil rights, our environment and our most basic freedoms. The next President could well appoint fifty or more circuit judges. We need a President who will appoint federal judges--at all levels--who will advance protections against discrimination and environmental destruction. And we need a Senate that will stop using political gamesmanship to delay and block qualified judicial appointees. Read More

Books & the Arts

‘The Big Discourse’

Unusually sensitive to the fast-changing character of liberal social structures, C. Wright Mills proved impervious to the bitter ironies of reform.

On Painting Reality

We've got too many stimuli and not enough places to put them. And so, perhaps, we keep moving around the surplus excitement, sticking it onto this or that image, with the un...

Acting for Justice

The two entertainment unions, already angered over runaway production, have tenaciously met the challenge and escalated the fight.

Recent Issues

See All "swipe left below to view more recent issues"Swipe →
See All