The Supreme Court's End of Term Cases:
A Demonstration of the Court's Continuing Independence That Proves Commentators Wrong

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Jul. 03, 2003

For the last several years, there has been a deafening drumbeat in the media with respect to the Supreme Court. Liberal commentators have claimed, over and over again, that the Court is anti-civil rights, and improperly politicized - and therefore illegitimate. But saying these things simply does not make them so.

Nothing could have furnished better proof of the falsity of these claims, than the opinions the Court recently issued, at the end of its 2002-03 Term. Liberals' jaws dropped at the results: A strongly pro-gay rights opinion, going even further than it had to? A middle ground on affirmative action? An opinion upholding the federal Family Medical Leave Act? Commentators seemed stunned. But they should not have been.

These end-of-Term decisions make plain what has always been true: The Court is centrist, not on the far right. It is not hostile to civil rights claims. It does not consult the political winds. And for all these reasons, it is perfectly legitimate.

The Basis for False Claims that the Court Is Hostile to Civil Rights

The idea that the current Court is anti-civil rights has derived, in part, from confusion about its federalism opinions.

Even the semantics are misleading: Critics refer to the opinions as "states' rights" opinions, perhaps hoping to evoke the Confederacy. But in fact, under the Constitution, only individuals have rights; states--like the federal government--have powers.

"States' rights" is a misnomer; "states' power" is more like it. Otherwise, some Constitutional basics tend to get elided: The States existed before the Constitution; in it, they ceded some, limited powers to the federal government; but they retained others.

For six decades, past Courts acted as if this were not true. But constitutional history and text are plain. The current Court should be applauded, not criticized, for its devotion to these basic legal sources. The Court has been scorned by liberals for supposed "activism"; in fact, it was restoring basic constitutionalism.

In recent years, a recognition of the limited nature of federal power has sometimes required the Court to strike down a federal civil rights law. This occurred in Boerne v. Flores, which struck down a law protecting religious rights; Board of Trustees of Alabama v. Garrett, which struck down provisions of the Americans with Disabilities Act; Kimel v. Florida Board of Regents, which struck down provisions of the Age Discrimination in Employment Act; and U.S. v. Morrison, which struck down the Violence Against Women Act. None of these laws enforced existing constitutional rights, but rather, by statute, created new rights.

Crucially, these laws were not struck down because they were civil rights laws. They were struck down because by passing them, Congress had exceeded its Constitutionally-defined powers, and intruded on the powers properly reserved to the States. In many of these cases, had the same Justices been sitting on state courts reviewing similar state laws, they would have upheld those laws.

The Court was protecting federalism, not attacking civil rights. Indeed, in language that has largely been ignored, many early federalism cases said just that: Existing civil rights decisions remain secure. But that language has been ignored in the midst of the political brouhaha concocted around the decisions--not by the Supreme Court, but by the media, interest groups, and the academy.

If you doubt it, ask yourself this: Why would a Court that was truly anti-civil rights decline, in Planned Parenthood v. Casey, to overrule Roe v. Wade? Why would the same Court, in Romer v. Evans, recognize the anti-discrimination rights of homosexual persons?

The idea that the court is blindly pro-States' rights is equally flawed. If so, why would no fewer than seven members of the Court, in Bush v. Gore, vindicate the Equal Protection Rights of individual voters to have their votes counted in the same way? There, it was a state court whose decision was countermanded, and a federal constitutional civil right that was vindicated, 7-2. One of the cheap shots against the decision has been that the Court did not follow its own federalism principles, but federalism was never adopted as a single interpretive principle to trump every other principle in the Constitution. To the contrary, these principles have spoken only to whether Congress lacked the power to enact a law.

Despite all this evidence to the contrary, left-leaning groups - in particular, disabilities groups and women's rights groups upset at the decisions in Garrett and Morrison, respectively - have still fanned out through the states to tell the people that this Court is "anti-civil rights," and pro "states' rights."

Worse, these groups have been spurred on by left-leaning law professors whose "scholarship" is simply liberal groupthink. It is condescending, enraged, and plainly politically-motivated even as it accuses the Court of the very same vice.

The Supreme Court press has been no better than the academy. Except for rare exceptions, its coverage of the federalism decisions departed from unbiased news long ago. Reader, be warned: Articles about the federalism decisions that aren't on the Op Ed pages, virtually always should be.

Meanwhile, the inaccurate claim by all of these groups that the Court is anti-civil rights has unfairly tainted the judicial selection process. Now a nominee who simply respects our basic constitutional federalism is assumed to oppose civil rights. Nominees shouldn't have to betray the Constitution to secure a seat on the federal courts.

The Current Supreme Court Is Not - and Never Has Been -- Anti-Civil Rights

That brings us to the recent end-of-Term cases. First, let's look at Nevada Department of Human Resources v. Hibbs, in which the Court ruled that the Family Medical Leave Act (FMLA) was constitutional.

In doing so, the Court rejected a challenge that had claimed the FMLA violated constitutional federalism - and held state powers were not infringed. It also recognized a long history of gender discrimination that had prompted Congress to act.

Doesn't sound much like an anti-civil rights Court, does it? That's because it never was one in the first place. Earlier language in the federalism cases had said that Congress has latitude to act, pursuant to the Fourteenth Amendment, with respect to discrimination that is widespread and persisting. When that discrimination was shown, the Court upheld the exercise of federal power. It shouldn't have been a surprise to anyone who was reading the cases carefully that it did

Nevertheless, the Supreme Court press, left-leaning groups, and the liberal academy expressed shock. And when the Court's subsequent opinion in Lawrence v. Texas was announced, they virtually fell off their podiums.

How, they wondered, could this "anti-civil-rights" Court have struck down an anti-sodomy Texas law targeting homosexuals? And in particular, what inspired it to - after acknowledging that it could have rendered a narrower Equal Protection decision to the law, which only targeted same-sex sodomy - reach out to do more, and find a violation of the right to privacy as well?

Liberals were shocked, shocked to discover how reasonable the Court was this time, but the truth is that it has been reasonable all along. They would have seen this long ago had they paid proper attention to Planned Parenthood v. Casey and Romer v. Evans.

Casey declined to overrule Roe's recognition of a right to bodily privacy that protected abortions. Romer held that homosexual persons could not be treated differently under the law. Plainly, Lawrence was simply the next incremental step in this line of reasoning: It made clear homosexual persons have the same right to bodily privacy as all of us do.

But that does not make for gripping sound bites or headlines, I suppose.

End-of-Term Cases Also Showed the Court Does Not Blindly Rule in States' Favor

Meanwhile, just as the end-of-Term cases I have discussed proved the Court is appropriately supportive of civil rights, other end-of-Term cases showed that the Court does not automatically rule in favor of states, and against the federal government. So much for the myth of the anti-civil-rights, "states' rights" Court.

In the Jinks case, for instance, the Court upheld a federal law that tolled a state statute of limitations. It held that the federal rule was necessary in support of the operation of the federal courts. The feds won; the state lost.

And in American Insurance Assn v. Garamendi, the Court struck down a California statute that it held was in conflict with federal foreign policy to address Holocaust survivors' insurance claims through international settlement, not litigation. The feds won; the state lost.

Finally, in yet another end-of-term decision, Beneficial National Bank v. Anderson, the Court struck down a state law affecting banking regulations, holding it was preempted by federal law in the same area. The feds won; the state lost.

There are plenty more not only this Term, but in the last several Terms. The one exception this Term was the Court's willingness to uphold California's three-strikes law, a decision I discussed in a previous column, but federalism concerns are especially keen in one of the few areas that clearly belongs to local control by history and practice, the criminal law.

The Pivotal Role of Justices O'Connor and Kennedy

In sum, when its opinions are examined from a neutral perspective, rather than a politically driven agenda, it is plain that the current Court is centrist. It ought to go down in history that way - not as the arch-conservative Court it is wrongly caricatured as being.

This Court's centrist position can be attributed to Justices O'Connor and Kennedy. Both have resolutely refused to consult with either the left or the right in any particular case. Instead, each relies on his or her own good judgment.

Were either Justice to retire, the Court would be robbed of the strong dose of common sense that has kept this Court from being a captive of either the right or the left. This is an independent Court, which is as it should be. For those who have refused to acknowledge that, the recent end-of-Term opinions should prove that point beyond debate.


Marci Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University. She clerked for Justice Sandra Day O'Connor at the Supreme Court. An archive of her columns on the Supreme Court can be found on this website. Her email address is hamilton02@aol.com

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