A New Starting Lineup Ginsburg May Alter Balance in Key Civil Rights Cases

Article excerpt

LAST YEAR'S presidential election has changed the face of this year's Supreme Court.

For the first time in Supreme Court history two women will sit on the bench - less than parity, but a long way from 1980 when there were no women.

For the first time in a quarter-century, a new Democratic appointee is joining the court.

For the first time in 12 years, the lawyer for the United States on the first Monday in October will be a liberal Democrat rather than a conservative Republican.

The new justice - Ruth Bader Ginsburg - and the government lawyer - Solicitor General Drew S. Days III - may make the court marginally more hospitable for civil rights claims. Ginsburg won her reputation as the leading women's rights advocate of the 1970s. At the same time, Days headed the Civil Rights Division of the Justice Department under President Jimmy Carter.

Ginsburg and Days are beginning their work at a time when the court's unusually light docket is dominated by civil rights disputes.

Voting rights, job discrimination, sexual harassment, abortion clinic protests, jury exclusion based on gender: these are the biggest cases of a term so far devoid of blockbuster religion or free speech cases.

Already Days has made a difference by abandoning the position of George Bush's Justice Department in four important cases. In those cases, Days is arguing that:

The Civil Rights Act of 1991 should be retroactive.

Dismissal of a juror based on gender is unconstitutional.

A single-member county government in Georgia violates the Voting Rights Act.

The government's legal standard in child pornography cases is too broad, making it too easy to convict.

None of this means that the Supreme Court has suddenly become a liberal heaven. The court does not change direction quickly, and the most recent Supreme Court term brought some of the most conservative results in recent history.

Legal experts of different political persuasions say that Ginsburg's replacement of Byron R. White will change the court's direction in only a few areas - those in which it is closely divided, such as the separation of church and state, affirmative action and marginal issues involving the death penalty.

Steven Shapiro, associate legal director of the American Civil Liberties Union, summarizes this way: "There is little reason to think 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 diminished."

But Bruce Fein, a conservative legal pundit, disagrees with Shapiro. Ginsburg may take a hard look at some civil rights claims because of her dislike of racial and sexual stereotypes, he says.

Fein also rejects Shapiro's view that the current court has assaulted precedent. "Remember this is the court that refused to overturn the legal precedent of Roe vs. Wade."

Here are some of the more controversial cases the court has agreed to hear: Voting Rights

On the last day of the 1992-93 term, the Supreme Court issued what may have been its most important decision of the year, ruling that racial gerrymandering of election districts is unconstitutional.

The justices will hardly have settled into their high-backed chairs Monday before they will dive back into this thicket with voting rights cases from Florida and Georgia.

In last term's decision, Shaw vs. Reno, the court ruled that a snake-like, 160-mile-long congressional district in North Carolina may be unconstitutional even though it was drawn up to comply with the Voting Rights Act.

Mark W. Tushnet, a law professor at Georgetown Law Center, says that the court's analysis may be the first step to overturning the Voting Rights Act, enacted in 1965 and credited with opening the door of public office to blacks and Hispanics. …