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ACLU Supreme Court Preview 1994-95:
Statement of Steven R. Shapiro, ACLU Legal Director
For IMMEDIATE RELEASE
September 27, 1994
WASHINGTON -- This year, like last year, the Supreme Court begins
its Term with a new centrist Justice and a shrinking docket. The
predictable effect of both developments is to reinforce the moderating
trend that has been evident in the Court for the past several years.
This is not a Court prone to broad statements of constitutional
principle. Its opinions and its constitutional vision, are relatively
narrow. On the other hand, this is no longer a Court embarked on a
constitutional counterrevolution. To the contrary, it is a Court that
places great value on the doctrine of stare decisis. It is a Court that
has clearly rejected the notion that original intent is the sole
legitimate means of constitutional interpretation. It is a Court that is
largely deferential to the political branches of government. And it is a
Court that is comfortable with legislative history as one means, among
many, of discerning legislative intent. In short, it is a Court that is
more likely to rely on statutory solutions than constitutional solutions
whenever possible, that prefers to focus on facts rather than broad
constitutional doctrines and whose general approach to the law is
incremental and cautious.
That cautiousness is reflected in this year's docket. Only two
years ago, the Court began the 1992 Term with 66 cases already on its
docket. Last year, the number was down to 46. This year, the number is 36.
Moreover, the Court has yet to take an abortion case, a religion case, an
affirmative action case or a voting rights case, to mention just a few of
the controversial topics that have dominated the Court's agenda in recent
times. Obviously, all of this may change during the course of the year.
But, the Court's slow start is fairly reflective of its general approach
to constitutional adjudication. This is a Court that will deal with
controversy when it must, but it is not seeking it out.
The ACLU is counsel in two major First Amendment cases that will
be heard early this fall. In United States v. National Treasury Employees
Union, the issue is whether the federal government can prohibit its
employees from earning any outside income from writing or speaking on
subjects that are entirely unrelated to their officials responsibilities.
In McIntyre v. Ohio Elections Commission, the issue is whether a state can
enforce a ban on all anonymous campaign literature that would have barred
publication of the Federalist Papers if it had been in effect during the
debate over constitutional ratification. The ACLU's position is that both
statutes are unconstitutional and should be struck down.
The ACLU is also participating as a friend-of-the-court in several
other important cases already on the Court's 1994 docket:
* In U.S. Term Limits, Inc. v. Thornton, the issue is whether
individual states may limit the number of terms that can be served by
members of their congressional delegation. The ACLU's position is that
individual states may not impose additional qualifications (or
disqualifications) on congressional officeholders beyond those set out in
the Constitution itself.
* In Lebron v. Nat'l Railroad Passenger Corp., the issue is whether
Amtrak should be bound by First Amendment standards when it rejects the ad
of a visual artist because of its political content. The ACLU's position
is that the state action decision should not turn on the formality of
whether Amtrak is characterized as a government agency or a private entity
but instead on the nature of the relationship and the extent of the ties
between Amtrak and the government. Beyond the resolution of this immediate
dispute, the Court's approach to this question has potentially
far-reaching consequences given the increasing privatization of government
services around the country.
* In McKennon v. Nashville Banner Publishing Co., the issue is
whether an employer's discriminatory behavior should be excused because
the employer discovers unrelated evidence of employee misconduct in the
course of defending against a discrimination lawsuit. The ACLU's position
is that such after-discovered evidence does not excuse the employer's
prior discrimination although it may affect the scope of the court-ordered
* In Arizona v. Evans, the issue is whether the Fourth Amendment's
exclusionary rule should apply when the police stop and search a car based
on an erroneous computer report that the driver was subject to an
outstanding warrant. It is the first time in nearly a decade that the
Court will be asked to consider the scope of the "good faith" exception to
the exclusionary rule. The ACLU's position, which echoes the position of
the Arizona courts in this case, is that the frequency with which these
administrative errors occur, their impact on the lives of ordinary
citizens, and the ease with which they can presumably be deterred, all
argue in favor of applying the exclusionary rule under these
As the Court ponders these issues during the upcoming Term, it
will sorely miss the personal voice and uniquely humanist vision that
Justice Blackmun brought to the law. There is every reason to expect,
however, that the addition of Justice Breyer will further reinforce the
increasingly apparent isolation of the Court's right wing on a range of
civil liberties issues. On that basis, we begin the year hopefully.
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