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Campaign funds, civil rights still on agenda

On civil rights and campaign cash, the Supreme Court earned an "incomplete" grade in the term that just ended.
/ Source: The Associated Press

On civil rights and campaign cash, the Supreme Court earned an "incomplete" grade in the term that just ended. There is a good chance the court will have a new member but the same right-of-center tilt when the justices return in late summer to deal with unfinished business.

The court suggested this week, but did not conclusively resolve, that it will be a conservative bulwark against both government and private efforts to promote diversity. Even parts of such iconic laws as the Civil Rights Act of 1964 and the Voting Rights Act of 1965 could face a rocky road in the years ahead.

So could federal and state laws that seek to curtail the influence of money in elections.

The court's action Monday in a campaign finance case strongly hinted that its conservatives will be able to overturn longstanding limits on corporate and union money in federal elections. The justices scheduled a new round of arguments for Sept. 9 in a case they first heard in March concerning whether a movie critical of Hillary Rodham Clinton's candidacy for president should be regulated as a campaign ad.

Vote not likely to affect outcome
By that time, President Barack Obama hopes the Senate will have confirmed his high court nominee, Sonia Sotomayor, so that she can take part in the case, although her vote is not likely to affect the outcome. Sotomayor was named to replace retiring Justice David Souter, and her votes would be expected to track his in many cases.

The justices decided 75 cases in the term that began last October, including 22 by 5-4 votes and 12 more in which the votes were 6-3. Many of those 5-4 decisions, like Monday's ruling finding that white firefighters in Connecticut suffered discrimination on the basis of race, came out in the usual conservative-liberal alignment.

Justice Anthony Kennedy wrote the majority opinion that held that voluntary efforts by governments and private employers to promote diversity can be vulnerable to reverse discrimination claims.

In several big, contentious cases, the court unexpectedly reached consensus by ruling very narrowly. The voting rights decision was one such example.

Eight justices signed onto an opinion that left intact a key component of the landmark civil rights law but also acknowledged that its continued existence poses "a difficult constitutional question" that they chose not to answer this time around.

But in expressing concern about aspects of the law, and Congress' actions in renewing it in 2006, the court laid down a marker that could lead to a "later decision invalidating the statute if it is not amended," said Tom Goldstein, a Washington lawyer who follows the court closely.

Court avoided constitutional issue
Similarly, Justice Antonin Scalia, in a separate opinion in the firefighters case, predicted that the court soon would have to wrestle with whether a portion of the 1964 civil rights law is at odds with the Constitution. The court avoided the constitutional issue in Monday's decision.

More generally, this term's divided rulings demonstrated once more that the law is whatever Kennedy — a moderate conservative — says it is.

Two cases illustrate Kennedy's influence as the man in the middle on the nine-member court.

In a dispute over judicial ethics, the issue was whether the Constitution requires a judge to step aside from a case when one party has contributed significantly to his election. In a DNA case, a convict was seeking the right to test evidence that would conclusively demonstrate his guilt or innocence.

Kennedy sided with the liberals in the judicial matter, saying elected judges cannot take part in cases when large campaign contributions from interested parties create the appearance of bias.

Chief Justice Roberts dissented
"Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause," Kennedy said for the court.

Chief Justice John Roberts dissented, saying states should be allowed to make their own rules.

Roberts made essentially the same argument in the DNA case, refusing to grant defendants a constitutional right to test the evidence. And this time he had Kennedy's vote.

"There are a lot of these issues where Justice Kennedy's vote is absolutely critical," said Paul Clement, a lawyer with the Atlanta-based King & Spalding firm and a former solicitor general in the George W. Bush administration.

Another important area is executive authority, particularly concerning the power to detain terrorism suspects. There, the liberals, with Kennedy on their side, have held sway.

Limited access to courthouses
That is one reason, perhaps the main reason, the Obama administration moved terror suspect Ali al-Marri into the civilian criminal justice system after he had been held without charges for more than five years in a Navy brig. The court had agreed to hear al-Marri's case and the administration risked seeing the court imposing limits on presidential power.

This term, the justices also ruled against efforts by business interests to block state lawsuits and investigations by invoking federal laws and regulations. In two cases, the court ruled in favor of plaintiffs in civil lawsuits, including a woman who lost her arm as a result of a botched injection, and state attorneys general who wanted to investigate potential discrimination in lending by national banks.

In the latter case, Scalia joined with the liberal justices to form an unusual majority. The same alignment also prevailed in a case limiting searches of suspects' automobiles without warrants.

In more mundane cases with significant consequences to the legal system, the court's conservatives limited access to courthouses by making it harder for plaintiffs to file and win civil lawsuits. Those decisions went against environmentalists and a Pakistani Muslim man who sought to hold FBI director Robert Mueller and former Attorney General John Ashcroft to account for the harsh conditions of his detention in a federal jail cell following the Sept. 11 attacks.