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Supreme Court ends term early and surly

Charles Bierbauer

By Charles Bierbauer
CNN Senior Washington Correspondent

July 1, 1999
Web posted at: 11:06 a.m. EDT (1506 GMT)


This news analysis was written for CNN Interactive.


In this story:

Fighting words over federalism

...To be continued?

One individual bunch


WASHINGTON (CNN) -- The Supreme Court ended its 1998-99 term in a hail of angry words.

Justice Anthony Kennedy railed at "scanty and equivocal evidence" and "analytical confusion."

Justice David Souter rained adjectives: "unrealistic ... indefensible ... fleeting."

And that's what the justices had to say about each other.

All this came as they attacked their opposing views in a case about states' rights. Three such cases were decided on the final day of the term, June 23, the earliest departure date in 30 years. On each case, the court was contentiously divided, 5-4, assuring the states of "sovereign immunity" from lawsuits.

Fighting words over federalism

States' rights is a complex issue, but central to this court's view on federalism; that is, the balance of federal and state powers. Recent rulings show a majority of justices are willing to give states the upper hand over Washington.

Supreme Court justices
The Supreme Court justices in 1996; left to right: Antonin Scalia, Ruth Bader Ginsburg, John Paul Stevens, David Souter, William Rehnquist...   

"This is a court where there is simply no 'swing' justice anymore on federalism cases," said Walter Dellinger, former acting solicitor general and now Duke University law professor.

The conservative majority comprised Chief Justice William Rehnquist and Justices Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas. The more liberal minority included Justices Stephen Breyer, Ruth Bader Ginsburg, Souter and John Paul Stevens.

Kennedy took 51 pages to explain why probation officers in Maine could not sue the state for overtime wages, even though the Fair Labor Standards Act says they should be able to. The precedent here is that the court may have deprived citizens of a way to sue their states unless the state consents to go to court.

Supreme Court justices
...Renhquist again, Clarence Thomas, Sandra Day O'Connor, Stephen Breyer, Anthony Kennedy   

"Congress has vast power but not all power," Kennedy wrote for the majority.

Souter took 58 pages to lament, with three other dissenters, that the court had abandoned a principle of the framers of the Constitution "that where there is a right, there must be a remedy."

Scalia, suddenly an environmentalist, took the lengthy dissent to task for "a degree of repetitive detail that has despoiled our northern woods."

Even the unfailingly polite Stevens chided the majority for its "expansive and judicially crafted protection of states' rights."

"Judicially crafted" is a well-crafted euphemism for judicial activism. Those are fighting words.

The verbal language and body language on the bench were remarkable. It is rare for a dissent to be read in court, but Stevens, Souter and Breyer each chose to voice his objection to the state sovereignty rulings. Veteran court observers could not recall anything to match the tone and testiness of this court split.

...To be continued?

Just a year ago, I wrote for this feature that this was "a congenial court." All it takes is a fundamental constitutional difference of opinion to raise the rifts.

Perhaps the justices are ripe for some R&R on the long summer break on which they've now embarked.

When they come back in the fall, they'll take another look at the states' rights issue, in a case that questions whether a whistleblower can sue the state of Vermont on behalf of the federal government for allegedly violating federal laws.

The federal government can sue a state itself, but may not always choose to take up the cause for individuals.

Why is this a growing concern? Among other reasons, including legal precedent interests, state governments are venturing into ever more ventures, increasingly becoming competitors to commercial enterprises. For example, they hold hundreds of potentially lucrative patents developed in state universities.

In the two other cases decided last week, the same five justices ruled a commercial bank in New Jersey could not sue Florida's program for prepaid college savings plans. Not for alleged patent infringement. Not for allegedly misrepresenting the state's program.

Rehnquist
Chief Justice William Rehnquist, at President Clinton's impeachment trial   

"I think it is really Rehnquist's vision of state sovereignty that has emerged as a really triumphant constitutional holding," said Dellinger, whose job as solicitor general was to argue before the Supreme Court on behalf of the Clinton administration.

One individual bunch

This court is going to be around for the rest of the Clinton term, barring any reversals of health. None of the justices is talking about retirement. That effectively bars Clinton from an opportunity to shift the balance which, on core constitutional issues such as federalism, now favors conservatives.

The fury with which the court ended this term overshadowed the rest of the 90 cases it heard since October.

Along the way the justices told lawmakers in cities, states and Congress a thing or two; they told:

  • the city of Chicago that even gang members might have a right to loiter on a street corner;
  • the state of California that welfare recipients have a "right to travel" among states and be treated just like others in their new states;
  • the state of Georgia that the Americans with Disabilities Act requires caring for the mentally ill in group homes whenever possible, instead of hospitals; and
  • the federal Bureau of the Census to count every American one by one, not by any statistical estimate.

Sometimes the justices were even unanimous in their opinions. But not on states' rights.

"This court is confident that it can come up with the right decision," said Dellinger, "not giving a great deal of deference to other institutions which have addressed those questions first."


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