By Savage, David G.
State Legislatures , Vol. 26, No. 8
The states won some and lost some in the Supreme Court's recent term, but when it comes to federalism the justices continue to lean in the states' favor.
The Supreme court in its recently completed term reined in state laws that give visitation rights to grandparents, cast doubt on open primaries, struck down the bans on "partial birth" abortions and ruled state officials may not disclose personal information from motor vehicle records.
But the states also had their share of wins. The justices shielded state agencies from "whistleblower" lawsuits, upheld state limits on campaign contributions and said limited public aid can flow to parochial schools.
From the states' perspective, the 1999-2000 Supreme Court term was decidedly mixed. In federalism cases, those that test the balance of power between Washington and the states, the justices continue to lean toward the states. Speaking for a 5-4 majority, Chief Justice William H. Rehnquist has insisted states have a "sovereign immunity" and cannot be subjected to private lawsuits. In January, for example, the Court ruled state employees and public college professors cannot sue their agencies for age bias, despite the federal Age Discrimination in Employment Act. (Kimel vs. Florida Board of Regents). The Court also has frowned upon the federal government's encroaching on states' turf in areas such as law enforcement and education.
But the states' rights philosophy did not prevail when the justices considered cases on abortion, grandparents, school prayer and primary elections. In those instances, the Court's majority struck down state laws as unconstitutional. For those inclined to confidently brand the Court as "conservative" or "liberal," they were confronted with at least a half dozen rulings the seemed to confound the easy labels.
The bellwether continues to be 70-year-old Justice Sandra Day O'Connor, the one-time majority leader of the Arizona state Senate. She cast the deciding vote in all of the Court's most closely contested cases, including those on abortion and aid to religious schools. She dissented in only four of this term's 74 official decisions, by far the lowest number.
Apparently, only she can provide the answer to one of the most significant pending questions: Can the states offer public vouchers to send children to parochial schools? And this year, she did not tip her hand.
For three decades, the Court has struggled to decide how or whether the government can provide tax support for parochial schools. At issue is the First Amendment's ban on laws "respecting an establishment of religion." Three distinct views have emerged among the justices.
Those on the liberal side say no public money may go to support parochial schools. These justices, insisting on a strict separation of church and state, say the Framers of the Constitution believed the government must not support religious indoctrination. At the other extreme, the conservatives say religious schools deserve equal treatment. If the government funds education, it can give money to public schools and parochial schools on an equal basis, they say. This approach neither favors or disfavors religion, they say, but rather is "neutral." Hovering in the middle are the moderates, such as Justice O'Connor, who are willing to allow "incidental" aid to parochial schools, such as loaned textbooks or special tutors, but not direct subsidies for religious teaching.
This year's test case came from Louisiana, where some parents sued because the local public school district was providing computers for the parochial schools. Federal funds were provided for just that purpose, but the U.S. court of appeals in New Orleans struck down the public school subsidy as unconstitutional.
The Supreme Court reversed that decision on a 6 to 3 vote in the case of Mitchell vs. Helms, but the justices in the majority disagreed on the rationale for the ruling. …