TIME: Almanac 1993/TIME Almanac 1993.iso/time/100890/1008110.000

Text File | 1992-08-28 | 5.8 KB | 113 lines

                                                                                LAW, Page 76

One Nation, Very Divisible


     As the U.S. Supreme Court grows more conservative, state
benches are becoming the new bulwarks of liberalism

     By PRISCILLA PAINTON


      In the highly emotional controversy over an individual's
right to die, the highest court in the land has taken a strict
stand. Last June the U.S. Supreme Court declared that government
has a legitimate interest in preserving life without regard to
its quality. But citizens of Florida can largely ignore that
ruling. Three weeks ago, that state's supreme court invoked the
"privacy" provision of the Florida constitution to say the state
should generally stay out of decisions to remove the feeding
tubes of incompetent and incurable patients.

     Almost a year earlier the Florida judges had sharply
departed from the high court on another volatile issue. Only
weeks after the U.S. Supreme Court gave states more power to
limit access to abortion, the Florida court, again citing the
state constitution, decided every woman has complete freedom to
terminate her pregnancy during the first trimester and cannot
be "significantly restricted" after the second.

     Ask Americans who has the last word on their constitutional
rights, and they will usually point to the U.S. Supreme Court.
But last week, as David Souter appeared certain to win Senate
confirmation of his seat on the nation's highest bench after a
13-to-1 vote by the Senate Judiciary Committee, some of the most
important pitched battles of American jurisprudence were being
fought far away from Washington, in the supreme court houses of
the 50 states. Despite the success of the Reagan and Bush
administrations at placing hundreds of conservative nominees on
federal benches, a growing number of state supreme court
decisions have created a patchwork of liberal exceptions to
federal rulings on everything from drug testing to school busing
to the public distribution of leaflets. And in an ironic
reversal of the states' rights ideology upheld by conservatives
during the era of the activist Warren Court, liberals now look
to state constitutions as among the best guarantors of their
freedoms.

     Ronald Collins, a visiting associate law professor at
Catholic University in Washington, has counted more than 600
cases in which the highest state courts have interpreted their
states' constitutions to protect civil liberties more broadly
than does the Supreme Court. About 60% of the decisions have
come since 1980. What has made this movement possible is the
long-standing legal principle that American states cannot
provide less protection for individual rights than the U.S.
Constitution, but they can provide more. And state decisions
are immune from challenge at the federal level so long as they
have an independent and adequate basis in the homegrown charter.

     First in a trickle, now in an increasing stream, the state
benches are using that prerogative. In New York, Connecticut,
North Carolina and New Jersey, for example, the highest courts
have refused to follow the U.S. Supreme Court in allowing
prosecutors to use illegally seized evidence. The high court
ruled in 1984 that such evidence was admissible so long as
police obtained a warrant and were acting in "good faith." In
California, Massachusetts and New Jersey, state supreme court
judges have decided that their constitutions demand public
financing of abortions for poor women, even though the U.S.
Supreme Court has found no reason under the U.S. Constitution
to require such spending. Oregon and Hawaii, respectively, going
far beyond the U.S. Supreme Court, have used the free speech and
privacy guarantees in their constitutions to strike down local
antipornography laws.

     Liberal lawyers are frank about the reasons behind their
change in venue. "I came face to face with Reagan's federal
appointees and got tired of being kicked around," says Jim
Harrington, legal director of the Texas Civil Rights Project.
Harrington has not filed a major civil rights case in federal
courts in the past seven years. Two years ago, though, he
convinced the Texas Supreme Court that the state's
constitutional right to privacy precluded mandatory
lie-detector tests for state employees. And in 1984 he won the
right to workers' compensation for itinerant field hands under
a state equal-rights amendment passed in 1972.

     Several state courts have stepped into a social-engineering
role in such areas as education and housing, where the Supreme
Court has not ventured for decades. The high court decided in
1973, for example, that equal access to education is not a
fundamental right under the federal Constitution. But 10 states,
including New Jersey last June, have used their constitutions
to order governments to bridge the gap between rich and poor
school districts by overhauling their financing system.

     Some state judges go so far as to argue that their high
courts are better instruments of democracy than the federal
bench because voters can remove state judges and can amend state
constitutions more easily than they can change the federal
charter. But even some liberals, including New York Governor
Mario Cuomo, are uneasy about the revival of state judicial
influence. They see it as a warning sign that the federal system
as a whole has abdicated responsibility for setting national
standards of justice. Declared Cuomo: "I do not believe the
fundamental liberties and rights of members of our national
community should vary, depending on what side of the state line
one happens to be on at the moment." Still, if the U.S. Supreme
Court becomes more entrenched in its conservatism, the
Balkanization of American constitutional law could easily gather
more momentum.