TIME: Almanac 1990/1990 Time Magazine Compact Almanac, The (1991)(Time).iso/time/062689/06268900.009

Text File | 1990-09-22 | 7KB | 130 lines

LAW, Page 63

Chipping Away at Civil Rights

With two key rulings, the court confirms its rightward shift


    One of Ronald Reagan's main goals as President was to put his
conservative stamp on the federal judiciary. His success on that
score was dazzling. Thanks to the large number of openings that
occurred during his two terms in the White House, Reagan was able
to appoint 346 federal judges -- more than any other President in
American history. "It is one of his most enduring legacies, and
one of his most significant," says William Bradford Reynolds, the
controversial former Assistant Attorney General for civil rights
in the Reagan Administration.

    Nowhere has that legacy been more apparent than in the makeup
of the current U.S. Supreme Court. Three of its nine members --
Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy -- were
appointed by Reagan. William Rehnquist, a Nixon appointee, was
promoted to Chief Justice by Reagan. Often allying themselves with
Byron White, they have anchored a conservative majority that seems
increasingly bent on undoing much of the work of its liberal
predecessors.

    Last week, in two major civil rights decisions, the Supreme
Court demonstrated its rightward drift. In an anxiously watched
North Carolina case, the high bench unanimously reaffirmed a
13-year-old precedent prohibiting racial discrimination in making
and enforcing private contracts. But by a vote of 5 to 4 -- with
all Reagan appointees in the majority -- the Justices refused to
extend the ruling to cover racial harassment in the workplace. Just
three days earlier, in a case involving Birmingham fire fighters,
the same five significantly lowered the barriers protecting
court-approved affirmative-action programs from challenges by white
workers.

    The rightward shift on civil rights began to quicken in
January, when the Justices ruled 6 to 3 that affirmative-action
programs may be approved only after the strictest judicial
scrutiny. The pattern became clearer two weeks ago when, by the now
familiar 5-to-4 vote, the court gave large companies accused of
discrimination a crucial procedural win. The Justices held that,
contrary to previous doctrine, it is employees who must prove that
imbalances in the racial makeup of their employer's work force
result from practices that have no valid business justification.
That ruling provoked a biting dissent from Justice Harry Blackmun:
"One wonders whether the majority still believes that race
discrimination . . . is a problem in our society, or even remembers
that it ever was."

    In last week's North Carolina case, a former teller at a
Winston-Salem credit union sought to use a Reconstruction-era
statute to make her case of racial harassment against her former
employer. Among other things, she claimed that she had been asked
to do menial tasks because she was black. Speaking for the
majority, Kennedy said the statute prohibited "the refusal to enter
into a contract" based on race, but not discrimination involving
"postformation conduct" under a contract. Sniped dissenting Justice
William Brennan: "What the court declines to snatch away with one
hand, it takes with the other."

    Civil rights advocates sharply criticized the decision. "How
can you have a civil rights law that doesn't cover racial
harassment?" asked Barry Goldstein of the NAACP Legal Defense and
Educational Fund. "That is the most basic kind of discrimination
there is. If you have a right to contract to get a job, don't you
have an equal right to work there and not be called a nigger?"
Racial-harassment claims will now have to be pursued under other,
more cumbersome federal laws.

    The fire-fighter case decided last week focused on two
agreements between black job applicants and the city and county
governments of Birmingham. The agreements, a pair of consent
decrees approved by a federal court in 1981, stipulated hiring and
promotional goals for blacks. In 1983 a group of white fire
fighters sued to void the arrangements, charging illegal reverse
discrimination. The high bench ruled that the city and county could
not stop the white fire fighters, who had not been involved in the
earlier case, from challenging the decrees.

    Writing for the majority, Chief Justice Rehnquist declared, "A
judgment or decree among parties to a lawsuit resolves issues as
among them, but it does not conclude the rights of strangers to
those proceedings." Dissenting Justice John Paul Stevens protested
that "a sideline sitter may be bound as firmly as an actual party
if he had adequate notice and a fair opportunity to intervene and
if the judicial interest in finality is sufficiently strong."

    The Birmingham decision could easily prompt a flood of new
lawsuits seeking to challenge long-established minority-preference
programs across the country. Thus civil rights organizations are
now fearful not only of losing future cases but also of seeing past
wins vanish in a new wave of litigation. "The court raises the
possibility of reopening cases that were resolved long ago," says
Julius Chambers, director-counsel of the NAACP Legal Defense and
Educational Fund. For Birmingham, the possibility of open-ended
litigation is immediate and troublesome. "We have open sewers in
some parts of our city," says Jim Alexander, an attorney
representing the municipality. "There are uses for the money other
than to pay lawyers."

    The latest decisions signal a major shift from the court's more
liberal days of the 1960s and early '70s, when civil rights rulings
regularly expanded the legal avenues available to minority and
women plaintiffs. "This is the first time in 30 years that the
court has a working five-member majority saying that the goal is
color blindness and gender blindness," observes conservative court
expert Bruce Fein. The Reagan majority is carrying out this
transformation not by frontally assaulting liberal precedents but
by chipping at the edges of the civil rights edifice. Observes
Georgetown law professor Eleanor Holmes Norton: "The Justices are
finding technical and procedural outlets for their substantive
hostility" to existing civil rights statutes and decisions.

    Most observers believe the court's turn to the right has been
accelerated by the arrival of Justice Kennedy, the latest Reagan
addition to the court, who is serving his first full term. Kennedy
replaced Lewis Powell, a moderate conservative on race questions,
after the collapse of the nominations of Robert Bork and Douglas
Ginsburg. "The civil rights community mounted this great offensive
against Robert Bork," says Walter Burns of the conservative
American Enterprise Institute. "Now they're getting what they
feared, without him on the court."

    In view of their cold reception by the Supreme Court, civil
rights advocates are increasingly looking to the Democratic-
controlled Congress for legislative remedies. Indeed, many of the
Justices' rulings involve interpretations of federal statutes that
could be easily overturned by passing new laws. "Hopefully,
Congress will have the political will to do exactly that," says
Harvard law professor Laurence Tribe. "The ball is back in
Congress's court."