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State & Local News Vol. 20, No. 1, Fall 1996
SUPREME COURT WATCHBy Beate BlochThe usual spate of end-of-Term decisions revealed a Court that was sharply divided on several major questions. This issue will discuss decisions involving the First Amendment, Equal Protection, and Voting Rights; other decisions will be discussed in the Winter issue.
First Amendment The opinion then turned to Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986), which had held that Puerto Rico could ban casino advertising addressed to residents of the Territory; and determined that it had been wrongly decided. Separate concurring opinions were written by Justice Scalia, who expressed his doubts about the Central Hudson test; Justice Thomas, who thought the Central Hudson balancing test should not be applied where the State's "asserted interest is one that is to be achieved through keeping would-be recipients of the speech in the dark"; and Justice O'Connor, joined by the Chief Justice and Justices Souter and Breyer, who would have applied Central Hudson but decided the case on narrower grounds. Colorado Republican Federal Campaign Committee v. Federal Election Commission, 64 LW 4663 (decided June 26), involved a provision of the Federal Election Campaign Act of 1971 that limits political party expenditures in connection with a "general election campaign" for Congressional office. In 1986, before the Republican party had selected its candidate for the Senate, the Committee bought radio advertisements attacking the likely Democratic candidate. In a suit by the Federal Election Commission, the Court of Appeals affirmed the district court holding that the provision did not cover the expenditures at issue. The Supreme Court vacated the decision and remanded the case. Justice Breyer, joined by Justices O'Connor and Souter, thought that the provision as applied violated the First Amendment. Justice Kennedy, joined by the Chief Justice and Justice Scalia in an opinion concurring in the judgment and dissenting in part, would have resolved the issue rather than remand the case. Justice Thomas, joined by the Chief Justice and Justice Scalia, also concurred, believing that the Court should reach the facial challenge to the law's provision. Justice Stevens, joined by Justice Ginsburg in dissent, thought that "all money spent by a political party to secure the election of its candidate for the office of United States Senator should be considered a 'contribution' to his or her campaign," even though the party's nominee had not yet been chosen. In two similar cases, the Court, voting 7 to 2, extended free speech protection to government contractors. In Board of County Commissioners, Wabaunsee County, Kansas, v. Umbehr, 64 LW 4683 (decided June 28), the Court held that the Board could not terminate a County contract in retaliation for the contractor's criticism of the County and the Board. Since 1985, the County had contracted with Umbehr as the exclusive trash hauler for all cities within the County that did not choose to reject it. The contract was automatically renewed each year unless either party served 60 days' notice of termination or 90 days' notice to renegotiate. Umbehr was an outspoken critic of the three-member Board, which voted to terminate his contract in 1991. Umbehr filed suit under 42 U.S.C. 1983, alleging that this action had been taken in retaliation for his criticism of the County and the Board. The Court of Appeals, reversing the district court, held that an independent contractor was entitled to the First Amendment protection afforded to public employees. The Supreme Court affirmed. Justice O'Connor, for the Court, found no "difference of constitutional magnitude" between independent contractors and employees in this context. The case was remanded for a determination whether the termination was in fact retaliatory. The Chief Justice concurred in all but one portion of the opinion. Justice Scalia was joined by Justice Thomas in dissent. O'Hare Truck Service v. City of Northlake, 64 LW 4695 (decided June 28), involved a contractor who had been on the city's rotation list of towing companies since 1965. In 1993, the company's owner and operator refused the mayor's request for a campaign contribution, and supported his opponent. He was then removed from the list. The lower federal courts dismissed his 1983 claim. The Supreme Court reversed and remanded, with an opinion by Justice Kennedy. Justice Scalia was again joined by Justice Thomas in dissent.
Equal Protection Justice O'Connor's opinion for the Court ruled that the "Constitution's equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords." The opinion remarked, rather picturesquely: "Inherent differences between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity." Justice O'Connor pointed out: "However 'liberally' this plan serves the State's sons, it makes no provision whatever for her daughters. That is not equal protection." Justice Scalia dissented. Romer v. Evans, 64 LW 4353 (decided May 20), involved Colorado's "Amendment 23," which repealed municipal ordinances that prohibit discrimination based on "homosexual, lesbian or bisexual orientation," and also prohibited any legislative, executive, or judicial action to protect the named class. The Court, voting 6 to 3, invalidated the Amendment. Justice Kennedy wrote the Court's opinion, holding that the law was a "status-based enactment" -- a "classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit." The law "classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. A State cannot so deem a class of persons a stranger to its laws." Justice Scalia, joined by the Chief Justice and Justice Thomas in dissent, cited Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld a law criminalizing homosexual conduct.
Voting Rights The Chief Justice, for the Court, held that North Carolina's plan violated the Equal Protection Clause because it was not narrowly tailored to serve a compelling state interest. The district court had found that the State's interest in ameliorating past discrimination "did not actually precipitate the use of race in the redistricting plan." While the State had a duty to comply with the Voting Rights Act, District 12 was not narrowly tailored to that interest. Finally, there could be no liability under section 2 of the VRA unless there was a "geographically compact" minority group. Justice Stevens, joined in part by Justices Ginsburg and Breyer, dissented on the grounds that (1) the plaintiffs had no standing; and (2) if the plan were subject to strict scrutiny, there should be a remand to the district court to apply that standard. Justice Souter, joined in part by Justices Ginsburg and Breyer, also dissented. Bush v. Vera, 64 LW 4452 (decided June 13), involved a Texas redistricting plan adopted after the State had received three additional Congressional seats following the 1990 census. Texas (1) created a new black-majority district, District 30; (2) created a new Hispanic-majority district, District 29; and (3) reconfigured District 18, which was adjacent to District 29, to create a black majority. The Department of Justice pre-cleared the plan, which was used in the 1992 elections. The Court, five to four, invalidated the plan. Justice O'Connor, joined by the Chief Justice and Justice Kennedy, wrote a plurality opinion, holding that the plan was subject to strict scrutiny because race was the predominant factor in drawing the "bizarrely shaped" districts. A computer program had been used to manipulate the district lines to achieve the desired result. The opinion found that the "level of racial manipulation . . . exceeds what 2 [of the Voting Rights Act] could justify." The State could not identify any recent discrimination that would be remedied. The redistricting was not necessary to 5 compliance; it resulted not in maintenance, but augmentation of the black population percentage in District 18. Justice O'Connor also wrote a separate concurring opinion; and Justices Kennedy and Thomas each wrote a concurring opinion. Justice Stevens, joined by Justices Ginsburg and Breyer, dissented, on the ground that politics appeared to have played at least as important a role as race in the redistricting, which secured the election of Democrats in a basically Republican State, as well as the re-election of incumbents. He pointed out that Texas also has "bizarre" white majority districts. He added that he would have expected this Court "to steer a course rather more deferential to the States . . ." Justice Souter was joined by Justices Ginsburg and Breyer in a separate dissent. Notes:
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