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- <text id=92TT1503>
- <title>
- July 06, 1992: A Surprising Display of Cent
- </title>
- <history>
- TIME--The Weekly Newsmagazine--1992
- July 06, 1992 Pills for the Mind
- </history>
- <article>
- <source>Time Magazine</source>
- <hdr>
- THE WEEK, Page 16
- NATION
- A Surprising Display Of Centrist Thinking
- </hdr><body>
- <p>The Supreme Court shuns extremes in four major cases
- </p>
- <p> For liberals, there has been little to cheer about the
- current Supreme Court term since Clarence Thomas took his place
- on the bench in November. Especially in the area of criminal
- procedure and individual rights, the Rehnquist court has been
- predictably conservative in its approach. But last week, as the
- term entered its final days, the high court issued a quartet of
- decisions that showed a distinct pro-First Amendment, pro-civil
- liberties streak that surprised many observers. What was clear
- was that Antonin Scalia and Thomas, the right wing of the
- court, were far from controlling the agenda. Instead, a group
- of Justices -- Sandra Day O'Connor, David Souter and Anthony
- Kennedy -- combined to demonstrate the existence of a new
- centrist core. "These cases may indicate the emergence of a
- stronger, more open-minded group in the middle" than might have
- been expected, said Vincent Blasi, a liberal law professor at
- Columbia. "It's easy to take potshots from the ideological
- extreme, but when your judgments actually determine the future
- of the Constitution, it tends to make you more responsible."
- </p>
- <p> While a much awaited decision about a restrictive
- Pennsylvania abortion law is still on the calendar for the
- court's last day, probably June 29, significant cases decided
- last week included:
- </p>
- <p> FREE SPEECH
- </p>
- <p> Three years ago, the Supreme Court held in a highly
- controversial 5-to-4 decision that burning an American flag is
- protected free speech under the First Amendment. Last week the
- court found that cross burning is also protected by the First
- Amendment. A Minnesota teenager, Robert A. Viktora, burned a
- cross on the front lawn of a black family in St. Paul and was
- charged under a city ordinance that banned any action "which
- one knows . . . arouses anger, alarm or resentment in others on
- the basis of race, color, creed, religion or gender.'' Scalia
- called the ordinance unconstitutional on its face "in that it
- prohibits otherwise permitted speech solely on the basis of the
- subjects the speech addresses." He was quick to add, "Let there
- be no mistake about our belief that burning a cross in
- someone's front yard is reprehensible. But St. Paul has
- sufficient means at its disposal" -- such as trespass laws --
- "to prevent such behavior without adding the First Amendment to
- the fire."
- </p>
- <p> All nine Justices agreed with Scalia's view that the
- ordinance ran afoul of the First Amendment. But four Justices --
- O'Connor, Byron White, John Paul Stevens and Harry Blackmun --
- took a different approach, attempting to find a way of
- accommodating so-called hate-crime laws that are drawn more
- narrowly. Left in doubt were hundreds of campus speech codes
- and bias-crime statutes throughout the country aimed at racist
- and sexist conduct.
- </p>
- <p> The court held in another case that airports must allow
- political and religious organizations to distribute literature
- in terminals, but it added that such groups may be barred from
- soliciting donations.
- </p>
- <p> SCHOOL PRAYER
- </p>
- <p> When Deborah Weisman graduated from a public middle school
- in Providence, R.I., in 1989, school officials invited a rabbi
- to deliver an invocation and benediction at the commencement.
- Last week, in a rebuff to the Bush Administration, the high
- court found by a 5-to-4 ruling that the school's action was a
- violation of the Establishment Clause of the First Amendment.
- Writing for the majority, Justice Kennedy held that "the
- Constitution forbids the State to exact religious conformity
- from a student as the price of attending her own high school
- graduation." In doing so, the majority refused to overrule the
- 1971 Lemon test, which the Administration had urged the
- Justices to jettison. For a government practice to pass
- constitutional muster, Lemon requires that it have a secular
- purpose, that it neither advance nor inhibit religion as its
- primary purpose and that it avoid excessive "entanglement" of
- government and religion.
- </p>
- <p> The court took pains to note that its decision applies only
- to public elementary and secondary school activities; other
- decisions by the court have permitted prayers before the opening
- of state legislatures and Congress. Nevertheless, the decision
- drew a bitter dissent from Justice Scalia, joined by Thomas,
- Rehnquist and White. "The court -- with nary a mention that it
- is doing so -- lays waste a tradition that is as old as public
- school graduation ceremonies themselves," wrote Scalia.
- </p>
- <p> TOBACCO-COMPANY LIABILITY
- </p>
- <p> By the time the Supreme Court announced it would decide
- whether the tobacco industry could be sued by smokers for
- concealing facts or lying about the health dangers of smoking,
- the industry had attempted to hire Laurence Tribe, a prominent
- Harvard Law School professor, as its lawyer. Tribe chose to
- represent, pro bono, the other side -- the family of Rose
- Cipollone, a Little Ferry, N.J., woman who died of lung cancer
- after smoking for 42 years. By a surprising 7-to-2 vote, the
- court sided with Tribe, rejecting arguments that lawsuits in
- state courts were barred by federal legislation requiring
- warnings on cigarette packages. Only Justices Scalia and Thomas
- dissented. Tobacco spokesmen applauded the ruling because
- litigants face technical hurdles, but the decision was seen as a
- major defeat for the industry; although cigarette stock prices
- remained steady, manu facturers will be hit with a flood of
- lawsuits.
- </p>
- <p> COLLEGE DESEGREGATION
- </p>
- <p> In its first ruling on racial discrimination in higher
- education, the court ruled that Mississippi has perpetuated
- segregation at its state-run colleges and universities, even
- though whites and blacks can attend any school they choose. By
- an 8-to-1 vote, with Scalia dissenting, the court said
- Mississippi has not done enough to overcome its history of
- legally enforced segregation because most black students still
- attend inferior, predominantly black schools.
- </p>
-
- </body></article>
- </text>
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