Court Ruled to Beat of the Nation
Washington Post Staff Writer
Sunday, June 28, 1998; Page A01
They are secluded in a place that's been called the Marble Palace and conceal their personalities beneath black robes. They rely on stacks of paper to interpret the human dilemmas before them and reach all their conclusions in private, ornate chambers.
Yet to a degree rare in recent history, the Supreme Court justices this term considered the rhythm and dramas of ordinary people and handed down decisions that could affect them significantly.
The justices put themselves in the place of the rank and file on the job. They saw the vulnerability of people who confide in family lawyers. They stepped into the shoes of cops chasing a fleeing suspect. And in one of the most important cases of the term that ended in a spree of decisions last week, they considered what it's like to live and die with the AIDS virus.
In many of the 91 rulings produced since the justices convened on the first Monday in October, the majority searched out a middle ground. They were practical. They asked what a reasonable person would think. And in what has come to be a hallmark of this moderate-to-conservative court, the justices captured a societal consensus. It was as if they looked out at the range of American beliefs and drew a circle around the center.
Sexual harassment is too common a problem, the court said, and no one should have to put up with it. But employers need not punish harmless flirtations. Whatever the justices may think of gays and drug users, they made clear that the AIDS virus that has come to be associated with those groups ought to be treated like any other disease. The justices acknowledged the public's concern over sexually explicit or offensive material and said, with only one of their brethren dissenting, that the federal government can consider standards of decency and respect for American values in deciding which art to fund.
While this term failed to match the momentous sweep of cases from the previous year, including physician-assisted suicide and Internet pornography, the recently completed session offered no less occasion for the justices to intersect with American life. It showed once again how, as Congress works incrementally and often without consequence, the justices are moving with forceful strokes in laying out the law of the land.
The pragmatic character of the court has emerged over the years, extending back to its 1992 decision upholding a woman's right to abortion but with some restrictions, and including last term's rulings against a right to physician-assisted suicide for the terminally ill but leaving open such a right in the future. Those decisions, pollsters and commentators found, tapped into majority consensus.
"This is a nuanced, subtle court that . . . splits the difference and avoids drawing bright lines," Stanford University law professor Kathleen M. Sullivan said yesterday.
The approach, embodied mostly in the voices of Justices Anthony M. Kennedy and Sandra Day O'Connor, flows from a judicial belief that the court's central task is to interpret law, not create it. The justices generally read the Constitution narrowly and look for exactly what Congress had in mind when it passed a law. The majority is not about to breathe into a statute what Congress failed to insert.
That thrust contrasts with the liberal era of the '60s and '70s when the court spoke most eloquently on behalf of racial minorities, the poor and the disadvantaged. Bygone jurists such as Chief Justice Earl Warren and Justices William J. Brennan Jr. and Thurgood Marshall believed that judges should find the essential meaning of the law not only in the text of the Constitution or statutes but in the broader needs of contemporary America. Rather than define where the nation was, they pushed and provoked so it would end up where they thought it ought to be.
If anything, this court catches up to where America already is. Rather than offering eloquently rendered, broad-reaching principles, today's majority carefully parses the law in hopes of reflecting society's norms.
O'Connor and Kennedy, 1981 and 1988 appointees of Ronald Reagan, most typify the pragmatic, case-by-case approach. And it is these two justices who most often find themselves in the majority, and for that reason have come to define the court's center. As a broad philosophy, they adopt federalist principles, believing that Congress should stay out of affairs that ought to be the states'.
Of much the same mind but further to the right are Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas. Rehnquist was appointed by Richard M. Nixon in 1971 and elevated to chief by Reagan in 1986. Scalia was appointed by Reagan in 1986 and Thomas by George Bush in 1991.
The "liberal wing," such as it is, comprises Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Stevens, the eldest justice, completed his 23rd year on the bench after being named by Gerald R. Ford. Souter is a 1990 Bush appointee and Ginsburg and Breyer were named by President Clinton in 1993 and 1994, respectively.
That 5 to 4 split yielded some controversial outcomes, but in many of the most closely watched cases of the term, the ideological groupings dissolved.
The court delved into the harassing behavior that has become commonplace in many workplaces. "Sexual harassment by supervisors (and, for that matter, co-employees) is a persistent problem," Souter wrote for the court in one of two 7 to 2 rulings on the topic. (Only Scalia and Thomas dissented.)
In the opinions by Souter and Kennedy on the last day of the term, the court said employers can be held liable for the misconduct of their supervisors even if they didn't know it was taking place. They said that, by now, every employer should know harassment occurs and take steps to prevent it.
Earlier in the term the justices took on an emerging workplace question: whether harassment can be considered illegal sex discrimination if the harasser and victim are of the same sex. The justices ruled yes, unanimously.
In that case, Scalia explained why it is important to examine the social context of the harassment: "A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office."
Scalia said the "ordinary socializing in the workplace such as male-on-male horseplay or intersexual flirtation" should not be mistaken for discriminatory harassment that unlawfully affects job conditions.
The court's decisions on sexual harassment in the workplace, particularly the two on employer liability last week, made it easier for employees to sue for harassment but also gave employers ways to avoid liability, largely by preventing vulgar remarks, unwanted advances and other harassment in the first place.
That solution was typical of the court's attempt to find balance in situations that defy easy answers.
"It is a welcome change from previous years when the court and Congress often seemed at war over civil rights laws," said Steven R. Shapiro, the American Civil Liberties Union's national legal director.
But the fourth harassment ruling was not greeted with such warmth by civil rights advocates. The court, split along its usual 5 to 4 divide, held that a student may sue a school district for damages only if the district knew of the harassment and was deliberately indifferent to it.
Critics said it defied common sense for the court to set tougher standards to protect adults against sexual harassment while refusing to safeguard harassed students in the same way.
The reason traces back to the justices' careful reading of the laws they had to work with, and their unwillingness to push beyond what those laws state. As O'Connor explained, the federal statutes governing harassment on the job and at school are different. Title VII of the Civil Rights Act of 1964 is an outright prohibition on sex discrimination and harassment on the job, while Title IX of the Education Amendments of 1972 is based on a presumption that schools that receive federal funds will first be notified of discrimination problems and allowed to correct them before being held financially liable.
"No one questions that a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher, and that the teacher's conduct is reprehensible," O'Connor wrote. But she said it is up to Congress to specifically write a law that holds a school district liable in damages for a teacher's harassment of a student even if it didn't know about it.
Kennedy and the rest of the conservative bloc signed O'Connor's opinion. But three days later Kennedy proved the crucial vote in another case, joining the more liberal members in ruling that federal disabilities law covers people with the virus that causes AIDS.
Examining the language of the 1990 Americans with Disabilities Act and its history, Kennedy said the law must cover people who have HIV even if they have no outward symptoms. He offered a clinical but chilling rendition of the virus's phases and intimated a compassion for its victims that would have been unlikely a decade ago.
"The virus concentrates in the blood. The assault on the immune system is immediate. The victim suffers from a sudden and serious decline in the number of white blood cells," Kennedy wrote.
In a separate case that had been closely followed by advocates for the terminally ill and elderly, the court ruled that the attorney-client privilege, which keeps conversations between the two confidential, does not dissolve when the client dies.
"Many attorneys act as counselors on personal and family matters," Rehnquist wrote in the opinion that examined the myriad reasons an average person would confide in a lawyer. "These confidences may not come close to any sort of admission of criminal wrongdoing, but nonetheless be matters which the client would not wish divulged."
The justices rejected an effort by Whitewater independent counsel Kenneth W. Starr to obtain the notes of a conversation former White House counsel Vincent W. Foster Jr. had with his lawyer before Foster committed suicide.
In the Foster case, the justices refused to balance the needs of a prosecutor against those of private individuals. But in many other criminal law cases, this court opens its analysis by weighing the state's interests against individual citizens.
Mostly, this court has strengthened the hand of prosecutors and police as it did when the justices put themselves in the place of police officers engaged in a high-speed chase.
The justices considered the "split-second judgments" that must be made in "tense, uncertain and rapidly evolving" circumstances as they adopted a tough standard for the innocent crash victims who want to hold police liable under civil rights law.
With the close of this term, these nine justices have been together for four years, ever since Breyer joined the bench as Harry A. Blackmun's successor in 1994. And they seem to have reached an equilibrium. They ended their session on a day in June that was the earliest in a decade.
As for the boldness of their convictions, they bear little resemblance to the liberalism of the '60s and '70s and are discernably more moderate than the distinctly conservative terms near the beginning of the decade. But the court is making a significant imprint on American lives and striving, as former Justice Robert H. Jackson said a half-century ago, "to maintain the great system of balances upon which our free government is based."
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