BUSH VERSUS BUSH

By MICHAEL C. DORF

Monday, Sep. 11, 2000

How George W. Bush's Likely Supreme Court Nominees Could Undermine His Own Education Policy

As Texas Governor George W. Bush and Vice President Al Gore vie for the political center, education has emerged as one of the issues on which the candidates display seemingly sharp differences. Bush would spend federal funds to provide tuition vouchers for use at private schools, while Gore would focus his efforts on improving failing public schools.

The Presidential election may indeed have a substantial impact on national education policy -- but not because of the candidates' views about vouchers. Even under the Bush plan, vouchers would play a relatively small role, and both candidates support a substantial federal commitment to education.

Instead, it is through Supreme Court nominations that the next President may have his most lasting impact on education. And while Gore Justices are likely to uphold Gore education policies, Bush Justices might well vote to strike down the very federal education proposals Bush is currently touting in his campaign.

The Court's Trend Of Restricting Federal Power

Over the last five years, a conservative 5-4 majority of the Supreme Court has repeatedly restricted federal power. Just this June, for example, in United States v. Morrison, that majority invalidated a provision of the Violence Against Women Act that allowed victims of gender-motivated violence to sue their attackers. According to the Court, the statute's subject matter was too local to justify a federal law.

In 1995, in United States v. Lopez, the same Justices invalidated a federal law barring gun possession within 1,000 feet of a school on the same basis. The federal government argued that safe schools are essential to our national economy, and thus fall within the federal government's historically broad power to regulate interstate commerce. In response, Chief Justice Rehnquist wrote, on behalf of the Court, that "criminal law enforcement [and] education" are areas "where States historically have been sovereign" -- and thus, areas where the federal government cannot intrude.

Bush Justices Are Likely To Strike Down Anti-Youth-Handgun Law

Governor Bush has repeatedly stated that he would appoint to the Supreme Court jurists in the mold of Antonin Scalia and Clarence Thomas, the two Justices who take the most restrictive view of federal power. Ironically, such Justices would likely invalidate some of the very education measures Bush supports, and upon which he has staked much of his candidacy. That's because the new Bush Justices would only bolster the Court majority in favor of restricting federal power.

Bush has, for example, called for tougher enforcement of the Youth Handgun Safety Act, which prohibits, among other things, handgun possession by minors. But even given the Court's current makeup, that provision, if challenged, could be ruled unconstitutional under the Lopez precedent, which strongly implies that federal gun control laws are unconstitutional unless they require the government to prove that the particular gun in each case has moved in interstate commerce. Although other provisions of federal law require such proof, the youth gun possession provision that Bush wants to enforce has no such requirement. Therefore, it might well be invalidated by the current Court, and the likelihood of its demise would only increase if Bush were to fill the next Supreme Court vacancies.

Bush Justices Could End Conditional Federal Education Grants

Most of Bush's education proposals, like most of Gore's, take the form of federal grants to states in exchange for state compliance with federal rules. Under the Bush plan, for example, states receiving federal money would be required to implement annual math and reading tests, create systems of accountability for individual schools, and enforce safety standards. How would such conditions fare at the Supreme Court? That too may depend on who appoints the next Justices. Again, Bush Justices might well quash the very proposals Bush is currently putting forward.

In yet another 5-4 decision, in Printz v. United States, the Justices in 1997 invalidated the background check provision of the Brady Handgun Violence Prevention Act, on the ground that Congress cannot instruct state officials to carry out federal law. The Court's decision left open a loophole allowing the federal government to do just that if the instructions take the form of conditions on federal grants. Under this loophole, the Bush proposals would survive Court scrutiny.

But the loophole may not last very long -- and Scalia-clone Bush Justices could be the ones to close it. Writing for the Court in the Printz case, Justice Scalia observed that "it will be time enough to" consider the constitutionality of conditions attached to federal grants "if and when their validity is challenged in a proper case" -- remarks that may foreshadow the end of the conditional-grant loophole.

Older cases already say that conditions on federal grants will be deemed unconstitutional if they amount to "coercion." Should the Court so wish, it would be a relatively simple matter to find that a great many programs of conditional spending amount to impermissible coercion. If Bush Justices think like Scalia -- as Bush has promised they will -- they might very well take this route. If they did, the federal government would be faced with the Hobson's choice of giving states unconditional cash grants for education -- and thus setting no federal education policy at all -- or simply not giving grants at all.

Gore Justices, In Contrast, Are Likely To Uphold Federal Education Measures

Should Vice President Gore win the election, the Supreme Court might invalidate some of his ambitious education proposals, but the rulings could be temporary. That is because, should he have the opportunity, Gore is likely to nominate Supreme Court Justices whose views are similar to those of Clinton appointees Ruth Bader Ginsburg and Stephen Breyer. Ginsburg and Breyer consistently vote to defer to Congress's judgment as to what is properly a national, rather than merely a state or local, concern. In their view, if Congress believes an education issue is truly national, then the Court should not substitute its own judgment. With just one more like-minded colleague, Justices Ginsburg and Breyer, along with Justices Souter and Stevens, could reverse the Court's recent insistence on treating problems that often have national dimensions, such as education, as if they were always and only local concerns.

By appointing Supreme Court Justices, the next President will have a lasting influence on a great many issues -- from abortion and affirmative action to church-state separation, the environment, and gay rights. More immediately, and more ironically, should the next President be George W. Bush, his Supreme Court appointees could well play the decisive role in scuttling one of his very own policy priorities: education.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University School of Law.

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