FORGET THE USUAL LABELS: Liberal or conservative.
Pro-government or anti-government. Activist or restrained.
The major rulings of the Supreme Court's 1995-96 term, which
ended Monday, can be explained by the justices' allegiance to two
constitutional principles: strict equal treatment under law and
freedom of speech, broadly defined. Those two principles bring
together the justices from across the spectrum, even if they yield
rulings that confound the usual analysis.
Consider the three leading civil rights rulings of the term.
The justices struck down an anti-gay state amendment in Colorado,
opened the doors of the Virginia Military Institute to women and
threw out the majority-black congressional districts in Texas and
The first two decisions were cheered by liberals, the third by
conservatives, but each resulted from a demanding application of
the 14th Amendment, which says no state shall "deny to any person
the equal protection of the laws."
Colorado's voters in 1992 adopted a state initiative known as
Amendment 2 that barred gays and lesbians from obtaining legal
protections against discrimination based on their sexual
Normally, the conservative-leaning Supreme Court upholds state
laws and defers to the wishes of the voters. But not this time.
The equal-protection clause demands "the law's neutrality when
the rights of persons are at stake. . . . Amendment 2 classifies
homosexuals to make them unequal to everyone else," wrote Justice
Anthony M. Kennedy for a 6-3 majority.
VMI had enrolled only men in its 157 years, and officials of
the military academy argued that its harsh, physically demanding
style of education was unsuited to women. Federal judges in
Virginia could not bring themselves to end the all-male tradition.
The Supreme Court had no trouble doing so. By a 7-1 vote, it
brushed aside generalizations about the sexes and ruled that the
equal-protection clause simply does not permit the "categorical
exclusion" of women from a state-funded school.
But the equal-treatment principle does not always work in favor
of traditional victims of discrimination, such as racial minorities
or women. As this Supreme Court showed, the rule also can work
In a blow to affirmative action, the Supreme Court voted 5-4 to
rule that "racial preferences" in public contracting are
unconstitutional, except to remedy proven discrimination.
The same 5-4 majority struck down three "majority-minority"
districts in Texas and one in North Carolina. The equal protection
clause does not allow state officials to use race as a "predominant
factor" in drawing electoral lines, the Supreme Court said.
On Monday, the Supreme Court let stand a federal appeals court
ruling that struck down an affirmative-action policy at the
University of Texas Law School. Although it was not a final ruling,
all nine justices agreed that the equal-protection clause does not
allow a two-track admissions policy that sets different standards
for white and black applicants.
Free speech is a similarly cherished constitutional principle
but also one that sometimes yields surprising results.
In recent decades, the free-speech principle has been built
into a powerful pillar of the law, one that stands just as solidly
in the nominally conservative court led by Chief Justice William H.
Rehnquist. In previous terms, the justices have struck down laws
against the burning of flags and crosses as well as measures that
outlawed "dial-a-porn." They also unanimously threw out a jury
verdict over a crude satire in Hustler magazine.
This term was also a good one for the free-speech principle.
In May, the justices struck down laws in Rhode Island and nine
other states that prohibited the advertising of beer and liquor
prices - a decision that spells trouble for President Bill
Clinton's proposal to ban cigarette ads directed at youth. …