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ACLU Supreme Court Preview 1993-94:
Statement of Steven R. Shapiro, ACLU Associate Legal Director
For IMMEDIATE RELEASE
September 27, 1993
WASHINGTON -- The upcoming Term is likely to reveal a great deal about
where the Supreme Court is heading in the next several years. As always,
the docket already includes several important cases and others will
undoubtedly be added when the Court resumes work on October 4. Beyond the
focus on specific cases, however, the upcoming Term will be an interesting
one to watch because of significant changes, involving politics and
personnel, in and around the Court.
First, and most obviously, is the appointment of Ruth Bader Ginsburg as
only the second woman ever to sit on the Supreme Court. She will be
immediately confronted with cases concerning sexual harassment in the
workplace, Harris v. Forklift Systems, Inc.; jury discrimination against
women, J.E.B. v. T.B., and abortion clinic protests, NOW v. Scheidler. Her
background and experience on these issues is unique. And while it is
manifestly unfair to pigeonhole Justice Ginsburg as a woman's rights
advocate, it is surely reasonable to assume that she will have something
special to offer as the Court grapples with issues that she has worked on
and thought about for decades. Given such familiar terrain, the role she
plays in these cases may give us a glimpse of the sort of Justice she is
likely to be.
More generally, Justice Ginsburg's addition to the Court reinforces a
political shift that has been underway for the past several years. This is
no longer a Court dominated by the radical right. Two years ago, there was
a great deal written about the emergence of Justices O'Connor, Kennedy and
Souter as a new "middle" on the Court. Last year, there was almost an
equal amount written about the apparent disintegration of this coalition.
A fairer statement, perhaps, is that this is a Court that lacks a coherent
constitutional vision and thus defies easy political characterization.
In part for that reason, and in part for reasons of judicial temperament,
this is a Court increasingly prone to write narrow opinions that are tied
to the facts and that avoid broad legal pronouncements. Based on her
tenure on the federal appeals court, Justice Ginsburg's judicial style
fits comfortably within this model of cautious and incremental judicial
There is little reason to think that this Court will lead the way in
identifying new constitutional and political rights. There is some reason
to hope that the threat of a wholesale assault on settled legal rights may
be somewhat diminishing. In that regard, the role of Justice Souter, and
his obvious commitment to the value of precedent, deserves special note.
Last Term, in particular he emerged as a strong and independent voice both
ready and willing to engage Justice Scalia in intellectual debate.
Finally, the work of the Court will undoubtedly be affected by the new
Administration and new Solicitor General. On some issues, there has
already been a dramatic shift. For example, in J.E.B. v. T.B., the Clinton
Administration has taken the position that the Constitution bars
prosecutors from using peremptory challenges to discriminate against women
in jury selection; the Bush Administration took the opposite view. On the
other hand, the Clinton Administration has chosen to defend a variety of
Bush Administration policies that raise serious civil liberties concerns,
including last Spring's decision to defend the Haitian interdiction
program in the Supreme Court and this Fall's decision to defend the ban on
gays in the military in the D.C. Circuit. Accordingly, the ACLU is hopeful
but not complacent that the new Administration will be a partner in the
effort to secure civil rights and civil liberties for all Americans.
The Court's commitment to civil rights and civil liberties will be quickly
tested again this year. On the first day of the Term, it is scheduled to
hear a series of voting rights cases. Its approach to those cases will go
a long way toward resolving whether last Term's decision in Shaw v. Reno
was aberration Al or whether it signalled a serious retreat on this
critical issue. During the Court's second week, it will consider the
retroactivity of the Civil Rights Act of 1991 in Landgraf v. USI Film and
Rivers v. Roadway Express. A decision favoring retroactivity will not only
help to preserve the civil rights claims of numerous discrimination
victims, it will also help to reduce some of the adversarial tension that
has marred the relationship between Congress and the Court over civil
rights in recent years.
This is clearly a transitional period for the Court. It remains to be seen
whether the Court will slowly return to its role as the preeminent
protector of individual liberties or whether it will shy away from hearing
and passing judgment on the most difficult issues of the day.
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