The Unpredictable Court

Article excerpt

The Supreme Court term that ended in July featured a strong ruling on behalf of "state sovereign immunity," marking the third time in five years the justices have strengthened the states' powers at the expense of Congress. The Court also clarified somewhat how race figures into the drawing of electoral districts, and gave political parties a free-speech right to spend as they choose to promote their views. And in something of a surprise, the Court struck down a Colorado voter initiative that limited gay rights; in the process of doing so, it cast doubt on all manner of state laws that may discriminate based on a person's sexual orientation.

The decisions of the 1995-96 term followed no predictable ideological pattern. Chief justice William H. Rehnquist was able to put together a narrow, 5-4 conservative majority to strike down "racial gerrymandering" in Texas and North Carolina and to uphold state sovereignty in the Indian gambling case. The liberal and moderate factions of the Court held sway in the decisions on gay rights and the striking down of the all-male admissions policy at the Virginia Military Institute.

The close votes suggest that the Court's balance depends on the next election. If Rehnquist, a Republican appointee, retires in the next four years, which is likely, a reelected President Bill Clinton could tip the balance back toward the left on issues such as affirmative action and congressional power. However, if Bob Dole is in the White House, the departure of liberal justice John Paul Stevens, now age 76, would allow him to bolster the conservative bloc that seeks to restrict abortion and allow prayer in the schools.


But for now, the Rehnquist-led majority has moved steadily, if gradually, to protect the states from the dictates of the federal government. Four years ago, the Court in New York vs. U.S. struck down Congress's attempt to force states to locate a nuclear waste dump within their borders. Federal officials cannot "commandeer" the states to carry out Washington's directives, the Court said. Last year, the Rehnquist majority struck down the federal law that made it illegal to have a gun in a school zone, on the grounds that Congress did not have the power to regulate such activity. Most federal laws rely on Congress's power over "commerce among the states," but having a gun near a school has no "substantial effect" on interstate commerce, the chief justice said.

This term, the Court faced the question of whether Congress could authorize federal lawsuits against the states to force them to negotiate with tribal leaders over gaming on reservations. This rather convoluted legal scheme was intended to resolve a three-way dispute over Indian gaming. The tribes, the states and Congress all wanted a voice in whether, or how, casino gambling takes place on reservations.

In response, Congress passed the Indian Gaming Regulatory Act of 1988. Rather than regulate gaming directly or empower the states to do it, Congress told states they must "negotiate with the Indian tribe in good faith" to set rules for reservation gambling. If the states refused, the law said tribes could go to federal court and file a lawsuit seeking to force their compliance.

That last provision led to the case of Seminole Tribe vs. Florida. Governor Lawton Chiles said the voters of his state were opposed to casino gambling, and he refused to negotiate with the tribes over the matter. His lawyers also argued that the 11th Amendment protects the states from such suits in federal court, and the Supreme Court agreed.

The Ilth Amendment limits lawsuits against states, but its reach has been unclear. Six years ago, the Court upheld a Superfund lawsuit against Pennsylvania in which a private company sought to force the state to pay its share of a hazardous waste clean-up. But in March the Supreme Court overruled that decision and said a "state's sovereign immunity" cannot be waived by Congress, except in the area of civil rights. …