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ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU NEWS RELEASE * NEWS RELEASE * NEWS RELEASE * NEWS RELEASE NEWS ANALYSIS Supreme Court Ends Relatively Quiet Term; Power Slowly Shifts Away From Most Conservative Justices For IMMEDIATE RELEASE June 30, 1993 NEW YORK -- The Supreme Court Term that ended this week was a relatively quiet one for civil liberties, with fewer high profile cases and fewer far-reaching decisions than in the past several years. In part, this merely reflects the cases on the Court's docket. More significantly, however, it also appears to reflect a change in the Court's approach to constitutional decision-making. As the balance of power shifts slowly but perceptibly away from the Court's most conservative justices -- a shift that is likely to accelerate with the retirement of Justice White -- its majority opinions have become more focused on the facts and less prone to broad doctrinal statements. This change in attitude is a defeat for the far right, which was anxious and poised to capture the Court only a few years ago. It also reflects the emergence of Justice Souter as an increasingly pivotal member of the Court. But, at the same time, it is important to emphasize that the Court as a whole remains unsympathetic to a broad array of civil liberties concerns. "We are witnessing a shift from a radically conservative Court to a more traditionally conservative Court," said Steven Shapiro, Associate Legal Director of the ACLU. "It is an improvement, but it is an improvement that must be placed in context. The strong voices of Justices Brennan and Marshall are still sorely missed." The Court's essential conservatism was most apparent in three areas that have preoccupied the Justices in recent years: immigration, habeas corpus and civil rights. Perhaps the most shameful of the Court's rulings this year was its decision in Sale v. Haitian Centers Council, Inc. to uphold the Bush/Clinton program of intercepting fleeing Haitians on the high seas and returning them to Haiti without first determining whether they qualify as refugees. In a hypertechnical reading of the applicable law, the Court held that the ban against returning the victims of oppression to their oppressors only applies to those aliens lucky enough to reach our shores. The Court also continued its assault on habeas corpus. In Herrera v. Collins, an opinion by Chief Justice Rehnquist concluded that federal courts may not grant habeas corpus relief to a death row inmate who claims that newly discovered evidence establishes his innocence unless the inmate can point to some other constitutional violation occurring during his trial. In Gilmore v. Taylor, the Court held that federal habeas courts may not reverse a state court conviction even if a constitutional error was committed so long as the state court's interpretation of the law was "reasonable," even though wrong. And, in Brecht v. Abrahamson, the Court held that a habeas petitioner must prove that any constitutional error at trial caused actual prejudice, as opposed to the rule on direct appeal where the state must prove that the error was harmless beyond a reasonable doubt. The one exception to this otherwise dismal record was the Court's decision in Withrow v. Williams, which rejected the state's argument that violations of Miranda could not even be raised in habeas corpus proceedings. In civil rights, the Court once again demonstrated its disposition to adopt the narrowest possible interpretation of Congressional statutes. In St. Mary's Honor Center v. Hicks, the Court held that an employer can prevail in a Title VII case even if the plaintiff makes out a prima facie case of discrimination and even if the judge rejects as unbelievable the employer's nondiscriminatory explanation for its behavior. In Bray v. Alexandria Women's Health Clinic, the Court held that the blockade of an abortion clinic by anti-abortion protesters does not violate the federal civil rights laws. In Shaw v. Reno, the Court also dealt a blow to voting rights reform when it held that white voters can raise an equal protection objection to a congressional district that has been oddly shaped to increase minority voting strength even in the absence of an allegation that white voting strength is diluted as a result. The Court's First Amendment decisions, both in free speech and religion, have continued to focus on the government's obligation of neutrality. For example, in Lamb's Chapel v. Center Moriches Union Free School District, the Court unanimously held that once a school district opened its facilities to community groups on evenings and weekends, it could not exclude a religious group that wished to show a series of films on family values. In Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah, the Court ruled that a city could not prohibit the religiously motivated activities of an unpopular faith while permitting similar activities by secular groups to take place without restriction. And, in Cincinnati v. Discovery Network, Inc. and Edenfeld v. Fane, the Court displayed an increasing skepticism about government efforts to distinguish between commercial and political speech. The ACLU supported each of these decisions. But the ACLU disagreed with the Court's decision in Zobrest v. Catalina Foothills School District, which held that a deaf student in a parochial school could be provided with a sign language interpreter at state expense. The decision in Zobrest marks the first time that the Court has upheld the use of a state employee to assist in the delivery of a religious message in a parochial school -- and thus represents an undeniable setback for Establishment Clause values. It is at least equally significant, however, that in both Lamb's Chapel and Zobrest the Court rebuffed efforts to dilute the legal standard for judging Establishment Clause violations, which has been a principal goal of the religious right in recent years. In Wisconsin v. Mitchell, the Court was similarly unpersuaded by the argument that the First Amendment bars the government from imposing a harsher penalty on violent crimes where the victim is chosen on the basis of group characteristics such as race, religion or national origin. A unanimous Court held that such discriminatory acts of violence are no more protected by the First Amendment than any other acts of discrimination. And, citing the ACLU friend-of-the-court brief, among others, the Court noted that acts of discriminatory violence cause a unique injury to the victim and society. Finally, on the last day of the term, the Court issued two important decisions addressing the government's increasingly aggressive use of civil and criminal forfeiture. In Austin v. United States, the Court held that even civil forfeiture proceedings must respect the principle of proportionality embodied in the Eighth Amendment. Unfortunately, in Alexander v. United States, the Court refused to recognize any First Amendment limits on the government's use of RICO to seize and destroy the entire inventory of a bookseller who had been convicted of selling a handful of obscene books and videos. --endit-- ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"

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