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ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU NEWS RELEASE * NEWS RELEASE * NEWS RELEASE * NEWS RELEASE ACLU Supreme Court Preview 1993-94: Statement of Steven R. Shapiro, ACLU Associate Legal Director For IMMEDIATE RELEASE September 27, 1993 WASHINGTON -- The upcoming Term is likely to reveal a great deal about where the Supreme Court is heading in the next several years. As always, the docket already includes several important cases and others will undoubtedly be added when the Court resumes work on October 4. Beyond the focus on specific cases, however, the upcoming Term will be an interesting one to watch because of significant changes, involving politics and personnel, in and around the Court. First, and most obviously, is the appointment of Ruth Bader Ginsburg as only the second woman ever to sit on the Supreme Court. She will be immediately confronted with cases concerning sexual harassment in the workplace, Harris v. Forklift Systems, Inc.; jury discrimination against women, J.E.B. v. T.B., and abortion clinic protests, NOW v. Scheidler. Her background and experience on these issues is unique. And while it is manifestly unfair to pigeonhole Justice Ginsburg as a woman's rights advocate, it is surely reasonable to assume that she will have something special to offer as the Court grapples with issues that she has worked on and thought about for decades. Given such familiar terrain, the role she plays in these cases may give us a glimpse of the sort of Justice she is likely to be. More generally, Justice Ginsburg's addition to the Court reinforces a political shift that has been underway for the past several years. This is no longer a Court dominated by the radical right. Two years ago, there was a great deal written about the emergence of Justices O'Connor, Kennedy and Souter as a new "middle" on the Court. Last year, there was almost an equal amount written about the apparent disintegration of this coalition. A fairer statement, perhaps, is that this is a Court that lacks a coherent constitutional vision and thus defies easy political characterization. In part for that reason, and in part for reasons of judicial temperament, this is a Court increasingly prone to write narrow opinions that are tied to the facts and that avoid broad legal pronouncements. Based on her tenure on the federal appeals court, Justice Ginsburg's judicial style fits comfortably within this model of cautious and incremental judicial decision making. There is little reason to think that this Court will lead the way in identifying new constitutional and political rights. There is some reason to hope that the threat of a wholesale assault on settled legal rights may be somewhat diminishing. In that regard, the role of Justice Souter, and his obvious commitment to the value of precedent, deserves special note. Last Term, in particular he emerged as a strong and independent voice both ready and willing to engage Justice Scalia in intellectual debate. Finally, the work of the Court will undoubtedly be affected by the new Administration and new Solicitor General. On some issues, there has already been a dramatic shift. For example, in J.E.B. v. T.B., the Clinton Administration has taken the position that the Constitution bars prosecutors from using peremptory challenges to discriminate against women in jury selection; the Bush Administration took the opposite view. On the other hand, the Clinton Administration has chosen to defend a variety of Bush Administration policies that raise serious civil liberties concerns, including last Spring's decision to defend the Haitian interdiction program in the Supreme Court and this Fall's decision to defend the ban on gays in the military in the D.C. Circuit. Accordingly, the ACLU is hopeful but not complacent that the new Administration will be a partner in the effort to secure civil rights and civil liberties for all Americans. The Court's commitment to civil rights and civil liberties will be quickly tested again this year. On the first day of the Term, it is scheduled to hear a series of voting rights cases. Its approach to those cases will go a long way toward resolving whether last Term's decision in Shaw v. Reno was aberration Al or whether it signalled a serious retreat on this critical issue. During the Court's second week, it will consider the retroactivity of the Civil Rights Act of 1991 in Landgraf v. USI Film and Rivers v. Roadway Express. A decision favoring retroactivity will not only help to preserve the civil rights claims of numerous discrimination victims, it will also help to reduce some of the adversarial tension that has marred the relationship between Congress and the Court over civil rights in recent years. This is clearly a transitional period for the Court. It remains to be seen whether the Court will slowly return to its role as the preeminent protector of individual liberties or whether it will shy away from hearing and passing judgment on the most difficult issues of the day. --endit-- ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher:// | American Civil Liberties Union National Office | | "Eternal vigilance is the price of liberty"


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