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NEWS ANALYSIS

Supreme Court Ends Relatively Quiet Term;
Power Slowly Shifts Away From Most Conservative Justices

For IMMEDIATE RELEASE         
June 30, 1993                

     NEW YORK -- The Supreme Court Term that ended this week was a
relatively quiet one for civil liberties, with fewer high profile cases
and fewer far-reaching decisions than in the past several years.

     In part, this merely reflects the cases on the Court's docket. More
significantly, however, it also appears to reflect a change in the Court's
approach to constitutional decision-making.

     As the balance of power shifts slowly but perceptibly away from the
Court's most conservative justices -- a shift that is likely to accelerate
with the retirement of Justice White -- its majority opinions have become
more focused on the facts and less prone to broad doctrinal statements.

     This change in attitude is a defeat for the far right, which was
anxious and poised to capture the Court only a few years ago. It also
reflects the emergence of Justice Souter as an increasingly pivotal member
of the Court. But, at the same time, it is important to emphasize that the
Court as a whole remains unsympathetic to a broad array of civil liberties
concerns.

     "We are witnessing a shift from a radically conservative Court to a
more traditionally conservative Court," said Steven Shapiro, Associate
Legal Director of the ACLU. "It is an improvement, but it is an
improvement that must be placed in context. The strong voices of Justices
Brennan and Marshall are still sorely missed."

     The Court's essential conservatism was most apparent in three areas
that have preoccupied the Justices in recent years: immigration, habeas
corpus and civil rights.

     Perhaps the most shameful of the Court's rulings this year was its
decision in Sale v. Haitian Centers Council, Inc. to uphold the
Bush/Clinton program of intercepting fleeing Haitians on the high seas and
returning them to Haiti without first determining whether they qualify as
refugees. In a hypertechnical reading of the applicable law, the Court
held that the ban against returning the victims of oppression to their
oppressors only applies to those aliens lucky enough to reach our shores.

     The Court also continued its assault on habeas corpus. In Herrera v.
Collins, an opinion by Chief Justice Rehnquist concluded that federal
courts may not grant habeas corpus relief to a death row inmate who claims
that newly discovered evidence establishes his innocence unless the inmate
can point to some other constitutional violation occurring during his
trial. In Gilmore v. Taylor, the Court held that federal habeas courts may
not reverse a state court conviction even if a constitutional error was
committed so long as the state court's interpretation of the law was
"reasonable," even though wrong. And, in Brecht v. Abrahamson, the Court
held that a habeas petitioner must prove that any constitutional error at
trial caused actual prejudice, as opposed to the rule on direct appeal
where the state must prove that the error was harmless beyond a reasonable
doubt. The one exception to this otherwise dismal record was the Court's
decision in Withrow v. Williams, which rejected the state's argument that
violations of Miranda could not even be raised in habeas corpus
proceedings.

     In civil rights, the Court once again demonstrated its disposition to
adopt the narrowest possible interpretation of Congressional statutes. In
St. Mary's Honor Center v. Hicks, the Court held that an employer can
prevail in a Title VII case even if the plaintiff makes out a prima facie
case of discrimination and even if the judge rejects as unbelievable the
employer's nondiscriminatory explanation for its behavior. In Bray v.
Alexandria Women's Health Clinic, the Court held that the blockade of an
abortion clinic by anti-abortion protesters does not violate the federal
civil rights laws. In Shaw v. Reno, the Court also dealt a blow to voting
rights reform when it held that white voters can raise an equal protection
objection to a congressional district that has been oddly shaped to
increase minority voting strength even in the absence of an allegation
that white voting strength is diluted as a result.

     The Court's First Amendment decisions, both in free speech and
religion, have continued to focus on the government's obligation of
neutrality. For example, in Lamb's Chapel v. Center Moriches Union Free
School District, the Court unanimously held that once a school district
opened its facilities to community groups on evenings and weekends, it
could not exclude a religious group that wished to show a series of films
on family values. In Church of the Lukumi Babulu Aye, Inc. v. City of
Hialeah, the Court ruled that a city could not prohibit the religiously
motivated activities of an unpopular faith while permitting similar
activities by secular groups to take place without restriction. And, in
Cincinnati v. Discovery Network, Inc. and Edenfeld v. Fane, the Court
displayed an increasing skepticism about government efforts to distinguish
between commercial and political speech.

     The ACLU supported each of these decisions. But the ACLU disagreed
with the Court's decision in Zobrest v. Catalina Foothills School
District, which held that a deaf student in a parochial school could be
provided with a sign language interpreter at state expense. The decision
in Zobrest marks the first time that the Court has upheld the use of a
state employee to assist in the delivery of a religious message in a
parochial school -- and thus represents an undeniable setback for
Establishment Clause values. It is at least equally significant, however,
that in both Lamb's Chapel and Zobrest the Court rebuffed efforts to
dilute the legal standard for judging Establishment Clause violations,
which has been a principal goal of the religious right in recent years.

     In Wisconsin v. Mitchell, the Court was similarly unpersuaded by the
argument that the First Amendment bars the government from imposing a
harsher penalty on violent crimes where the victim is chosen on the basis
of group characteristics such as race, religion or national origin. A
unanimous Court held that such discriminatory acts of violence are no more
protected by the First Amendment than any other acts of discrimination.
And, citing the ACLU friend-of-the-court brief, among others, the Court
noted that acts of discriminatory violence cause a unique injury to the
victim and society.

     Finally, on the last day of the term, the Court issued two important
decisions addressing the government's increasingly aggressive use of civil
and criminal forfeiture. In Austin v. United States, the Court held that
even civil forfeiture proceedings must respect the principle of
proportionality embodied in the Eighth Amendment. Unfortunately, in
Alexander v. United States, the Court refused to recognize any First
Amendment limits on the government's use of RICO to seize and destroy the
entire inventory of a bookseller who had been convicted of selling a
handful of obscene books and videos.

--endit--
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