Justices to Begin New Term at High Court
Washington Post Staff Writer
Sunday, October 4, 1998; Page A24
When the nine justices of the Supreme Court emerge from behind a red velvet curtain Monday and ascend the bench, they will begin a term that could have a lasting impact on today's era of dismantled social programs and tougher law enforcement.
The nation's highest court was a catalyst in the tremendous social change of the 1960s, enforcing racial equality, protecting the rights of criminal defendants, shielding the poor and disenfranchised. And in the decades since, it has been in sync with Washington's reversed course, adopting a less-is-better view of government that more narrowly construes individual rights and challenges the traditional remedies for race discrimination.
A series of cases on the docket -- involving, among other topics, welfare reform and aggressive police tactics -- will force the justices to consider whether the pendulum has moved too far. Has government, in its swing back toward conservatism, trampled on individual rights in the process?
The policies at issue are products of the backlash to the liberal era of large government and expanded civil rights. And the court's eventual rulings this term could be as crucial to change in America as the court was during Lyndon B. Johnson's Great Society.
In a case testing the depth of a state's obligation to feed and shelter its poor, the court will decide whether California may offer more generous welfare benefits to established residents than to newcomers in hopes of dissuading any more poor families from moving in. In a dispute that showcases the "zero-tolerance" policing tactics of recent years, the court will consider whether Chicago or any other city trying to make its neighborhoods safer can arrest someone suspected of being a gang member simply for hanging out on a sidewalk.
Another case will find the justices trying to balance the rights of individuals to seek redress in the federal courts with modern concerns about terrorism. In this dispute, the justices will decide whether foreigners who say they are being selectively targeted for deportation because of their political views can bring their First Amendment claim to federal court. The Justice Department argues that such arguments -- in this case from a group of Palestinians it suspects of terrorist activities -- should be heard in an administrative deportation proceeding.
"These cases demonstrate what's at stake," said Steven R. Shapiro, American Civil Liberties Union legal director, "when government tries to take away basic freedoms -- from standing on the street corner, to supporting controversial political causes, to moving with your family to another state. . . ."
But Douglas Kmiec, a Pepperdine University law professor and former Reagan administration official, countered that those asserted rights are not deeply embedded. And as times have changed, Kmiec said, so has the process by which elected officials write laws and the Supreme Court justices approach cases.
"The legislative framework is now written in terms of new economic realities and new respect for state government," he said.
The welfare dispute, in particular, may draw out differences between the current court and the bench a generation ago. In a 1969 ruling, the justices said states cannot deny welfare benefits to new residents, declaring that "a state may no more try to fence out those indigents who seek higher welfare benefits than it may try to fence out indigents generally.
The justices on the bench then said they "do not perceive why a mother who is seeking to make a new life for herself and her children should be regarded as less deserving because she considers, among other factors, the level of a state's public assistance."
The case before the court this time has a twist. Instead of placing an outright ban on benefits to new residents, the California law says families can get only the amount of welfare they received in their prior states until they have lived in California for one year.
California and several other states supporting the limit say such laws are necessary in an era of patchwork welfare policies where every state is taking a different approach to welfare reform. By limiting the benefits to new residents, proponents argue, the policies force welfare recipients to find jobs where they are rather than cross state lines in search of larger welfare checks. But those challenging the law in Anderson v. Roe say it unconstitutionally restricts a poor family's right to move; they point out that while the monthly grant for a family of four in California is $673, a family of four that has moved from Mississippi, for example, would receive only $144 per month.
Lower courts ruled the two-tier benefits violated equal protection guarantees by treating new residents differently and impinged the freedom of poor people to move.
Among other hot-button social policy dilemmas before the court is the racially charged issue of how the nation counts its population, particularly the poor and disenfranchised, and, in a recurring case from North Carolina, how states can draw majority-black voting districts without violating new Supreme Court strictures on racial gerrymandering.
Other new cases will test how far the court goes in empowering the police while still protecting against unreasonable searches and seizures. In three new cases, the justices will address: whether officers may search the belongings of a passenger in a car based only on general suspicions that drugs are in the car; whether when police stop a vehicle and issue only a ticket (rather than make an arrest) officers can extensively search for weapons or other evidence; and whether houseguests (as opposed to residents) have a legitimate expectation of privacy and can challenge in court the actions of a police officer who peered through the slats of window blinds and saw people bagging white powder.
As Congress and the states have navigated the modern role of government, so has the Supreme Court. And not without difficulty.
The justices tend to divide into distinct groups: Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas compose the more conservative camp, narrowly interpreting constitutional rights and statutes; Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen G. Breyer are on the other side, holding onto the vestiges of the liberal era; Justices Sandra Day O'Connor and Anthony M. Kennedy straddle the middle but more often end up with the conservatives.
The conservative bloc and the two swing votes have constituted the five-justice majority that has curtailed affirmative action and black-majority voting districts. These justices, as they have written before, believe that racial classifications, even when they benefit people who have been disadvantaged, "reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin."
The country's struggles with race are in the background of some of the new cases.
In an effort to crack down on street gangs, Chicago passed a law that says "whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area." If the people do not move on, they can be arrested and fined up to $500 and jailed for up to six months.
The city says the law is the most effective way to counterattack the street gangs that terrify communities, invite violence and drive down property values. But the groups that have challenged the loitering law say it "is nothing less than a return to the street sweeping laws of America's past" that targeted blacks, Hispanics and other minorities.
The Illinois Supreme Court struck down the law, saying it is unconstitutionally vague and encroaches on the personal liberty of people to freely walk the streets and associate with others. Several states and cities are backing the city, as is the Justice Department, in Chicago v. Morales because of their interest in using similar laws to clean up the streets and prevent crime.
The census dispute between the Clinton administration and House Republicans centers on whether a federal law permits the government to use statistical sampling to estimate portions of the population rather than count every resident.
The administration says that minorities and poor people are traditionally among those missed and that statistical sampling actually makes a census more accurate because it accounts for lapses in the traditional head count method. (The Census Bureau estimated that in 1990 it missed 4 million of 250 million people.) But congressional Republicans contend that not only is sampling forbidden under census law, it also can be manipulated for political ends.
The stakes in the case, U.S. Commerce Department v. U.S. House of Representatives, are high because population figures from the 2000 census will be used to determine how much states get in federal money, as well as the size of congressional districts and political representation.
Without sampling, President Clinton himself has insisted, the accuracy of the census "especially with regard to minorities and groups that are traditionally undercounted, decreases substantially."
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