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ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU NEWS RELEASE * NEWS RELEASE * NEWS RELEASE * NEWS RELEASE 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 remedy. * 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 circumstances. 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. --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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