The Supreme Court begins its 1990 term today one justice short and 17 cases shy of a full calendar, but braced to confront such difficult social issues as school desegregation, sex discrimination, abortion and the death penalty.
The court will examine whether a company's "fetal protection" policy, which excludes fertile female workers from jobs that could expose fetuses to hazardous materials, violates the federal law prohibiting job discrimination on the basis of sex.
The court will review Reagan administration regulations that prohibit federally funded family planning clinics from providing patients with any information about abortion, although it is not yet scheduled to consider the constitutionality of any of the abortion laws passed in the wake of its 1989 ruling giving more authority to states to regulate abortion.
In the family planning case, however, the Bush administration has repeated its belief that the 1973 abortion decision Roe v. Wade should be overruled. The case could provide the first signal from David H. Souter, whose nomination to succeed retired justice William J. Brennan Jr. is awaiting Senate approval, on whether he believes the Constitution protects abortion rights.
The justices will consider the first school busing battle to come before the court in more than a decade. They will be asked to decide how to determine when school districts that once operated segregated school systems have eradicated the vestiges of that discrimination. They also will be asked to decide what constraints, short of refraining from intentional resegregation, are placed on such a school system.
The court, increasingly inhospitable to claims by death row inmates, will rule on whether Louisiana can force a mentally ill prisoner to take antipsychotic drugs in order to make him sane enough to be executed.
In 1986, the court held that it is cruel and unusual punishment to execute insane prisoners. However, the state argues in Perry v. Louisiana that it has a constitutional obligation to provide a mentally ill prisoner with medical treatment, and that failing to do so would amount to cruel and unusual punishment -- even if the medication makes him well enough to be executed.
In a case important to businesses, the justices will again consider whether the Constitution imposes any limits on jury awards of punitive damages. Business groups hope the court will use the case, Pacific Mutual Life Insurance Co. v. Haslip, to agree with what they have been telling the court for several years: that punitive damages can be so disproportionate to the harm done or imposed so haphazardly as to violate the constitutional guarantee of due process of law.
The desegregation, death penalty and punitive damages cases will be argued along with nine others this week, before Souter joins the court. If the eight justices divide evenly in any of the cases, it is possible some could be reargued after Souter's expected confirmation by the Senate.
If that happens, the justices will have plenty of time to hear the cases again. The court has fewer cases awaiting argument than in any year since 1954. There are 51 hours worth of cases ready for argument, down from 70 hours in last year's term and 89 hours the year before.
The court will add new cases today when the justices announce which of 1,287 pending petitions they will hear. But those cases will not be argued until January, unless the court orders them speeded up.
A number of reasons have been advanced for the shrinking docket, among them: fewer decisions from increasingly conservative appeals courts with which the justices disagree; fewer requests from the government for review; an effort by liberal justices and others to keep cases away from the conservative court; and a change in statutes governing the court's jurisdiction that removed one category of cases from those the justices had been required to hear.
Despite the diminished docket, the court will have its share of difficult and controversial cases this term.
In the fetal protection case, Auto Workers v. Johnson Controls, a battery manufacturer said it was necessary to exclude fertile female workers from the process to protect their offspring from birth defects caused by exposure to lead.
The full federal appeals court in Chicago upheld the manufacturer's policy in a 7 to 4 ruling that prompted vigorous dissents from two of the most conservative members of that court, Judges Frank H. Easterbrook and Richard A. Posner.
The union says the policy constitutes discrimination on the basis of sex, made illegal by the 1964 Civil Rights Act unless the company can demonstrate that sex is a "bona fide occupational qualification" (BFOQ).
Because a woman's capability to bear children has nothing to do with her ability to make batteries, infertility can never be a bona fide occupational qualification, the union argues. The union also notes that both men and women can develop reproductive damage from lead exposure.
The company, on the other hand, asserts that it has a responsibility to the children of workers to protect them from known workplace hazards.
The Bush administration entered the case on the side of the union, but says it is possible for a BFOQ defense to be used to justify a gender-based fetal protection policy. In this case, however, the administration says the court failed to consider evidence of possible harm to offspring from the exposure of male employees.
The abortion counseling case, Rust v. Sullivan, involves federal regulations adopted in 1988 prohibiting about 3,900 family planning clinics that receive federal funding from providing patients with any information about abortion, even on request.
The federal appeals court in New York upheld the regulations; two other appeals courts have struck them down.
Doctors and family planning organizations challenging the regulations, along with New York City and New York state, argue that they violate the free speech rights of clinic staff and patients because they discriminate on the basis of viewpoint, and that they violate due process by interfering with the doctor-patient relationship.
Defending the regulations, the Bush administration says the court has repeatedly stated that the government has no obligation to subsidize abortion. Refusal to pay for abortion counseling is similarly not a "government-created obstacle" to abortion, the administration says. It argues that it does not violate the First Amendment to require those who voluntarily accept federal funds to comply with the conditions of the grant.
The school desegregation case, Board of Education of Oklahoma City Schools v. Dowell, stems from the school board's 1984 decision to end 13 years of court-ordered busing and return to a neighborhood schools plan for grades one through four. That resulted in the creation of 10 virtually all-black elementary schools out of 58, with 40 percent of black children in those grades attending single-race schools in Oklahoma City, where schools were segregated by law until 1954.
The school board, seeking to overturn an appeals court ruling against the return to neighborhood schools, argued that it has eliminated the effects of past discrimination and should be freed from court control. The Bush administration agrees, but says the case should be sent back to determine whether the district truly has eradicated the vestiges of previous discrimination.
Civil rights groups argue that permitting Oklahoma City to return to segregated schools after 13 years of busing would undermine the promise of Brown v. Board of Education. They say the school board should be under a continuing obligation to maintain an integrated system.
The court also will decide:
Whether it is unconstitutional to sentence first-time drug offenders to life imprisonment without possibility of parole. (Michigan v. Harmelin.)
Whether a public employee union may require non-members to contribute money for lobbying, election campaigning and public relations activities. (Lehnert v. Ferris Faculty Association.)
Whether white defendants may challenge prosecutors' peremptory challenges to keep blacks off juries. (Powers v. Ohio.)
Whether the federal pension law bars workers from suing in state court on claims that they were fired in order to deprive them of pension benefits. (Ingersoll-Rand Co. v. McClendon.)
Whether federal regulators may be sued for their alleged negligence in supervising a failing savings and loan association. The government argues that imposing liability "would inhibit vigorous decision-making by federal officials at a time of acknowledged crisis." (U.S. v. Gaubert.)