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The uncontentious court.

This term the Supreme Court took a middle course, sidestepping fiery issues like abortion and affirmative action.

The Supreme Court ended its term this year on the same note as last year by restricting the reach of the Voting Rights Act, and limiting the responsibility of states with regard to drawing minority districts.

In its final opinion last year, the high court said the "racial gerrymandering" of electoral districts is unconstitutional. That 5-4 decision in Shaw vs. Reno called into question the many oddly shaped districts that were created after the 1990 census with the hope of sending more minority representatives to Congress. Until that ruling, the Justice Department, along with many state lawmakers, had assumed that districts must be created at all costs no matter how bizarre their shape might be to ensure that racial and ethnic minorities could elect representatives of their choice.

But the Court's opinion in Shaw, which addressed North Carolina congressional districts, said that district lines drawn solely for racial reasons violated a white voter's rights to "equal protection of the laws."

This year, on the last day of the term, the justices said the Voting Rights Act itself does not require states to "maximize" the number of seats for minorities when redrawing district boundaries. Acting on an appeal filed by the speaker of the Florida House of Representatives, the Court overturned a federal court decision that said the Legislature could have, and should have, created two additional seats for Hispanics in Dade County.

In a related case from Georgia, the Court said plaintiffs cannot challenge the size of a governing body under the Voting Rights Act. This 5-4 decision closes the door to civil rights lawyers who wanted to force county commissions or state legislatures to increase their size to allow more representation for minorities.

These two important victories for the states in voting rights cases were preceded by an equally important victory in a California tax case. In a 9-0 opinion, the justices not only upheld the state's use of the unitary taxing method for multinational corporations, but also said that only Congress, not the executive branch, has the constitutional authority to limit the taxing policies of the states.

But those wins for the states were offset by several key defeats. In a boost for property rights, the Court said that government officials cannot demand a dedication of land from a developer unless they can show that it is closely linked to the burden imposed by the development. The decision in an Oregon case (Dolan vs. Tigard) may leave state agencies vulnerable to lawsuits if they require property owners to set aside some land for trails, beach access, wetlands or open space.

The Court also made it harder for city and state officials to regulate the flow of solid waste. Reaffirming its view that garbage is just another commodity, the Court struck down an Oregon law that set higher dumping fees on out-of-state trash and invalidated a municipal "flow control" ordinance in New York that required garbage haulers to take their shipments to a city processing plant. Both laws violated the Constitution's prohibition of discrimination against interstate commerce, the Court said.

These rulings highlighted a term in which the Supreme Court clarified the law in many areas, but generally avoided dramatic rulings in highly charged disputes. Of late, the Court has shown a tendency to step back from contentious subjects such as abortion and affirmative action.

Two years ago, the Court in Planned Parenthood vs. Casey surprised most observers by affirming the basic right to abortion set in Roe vs. Wade. However, it also permitted states to impose limited regulations on abortion that would not put an "undue burden" on a woman. Apparently satisfied with this compromise, the justices since then have refused to hear further cases involving the abortion right. Similarly, the Court repeatedly grappled with "affirmative action" and "reverse discrimination" during the 1980s, but it has refused to hear an affirmative action case for the past four years.

When asked about this, the justices say they often withdraw from an area of legal controversy for a time to see how their rulings fare in practice. They are quite content to let lower courts work out the details after they have set a general rule of law.

At times, however, this reluctance to follow up on a decision can create confusion. Take, for example, the area of high school graduation prayers. In the 1992 case of Lee vs. Weisman, the Court on a 5-4 vote struck down a graduation prayer that had been delivered by a cleric in Providence, R.I. In his opinion for the Court, Justice Anthony M. Kennedy said students who do not want to hear a prayer cannot be held as a captive audience for a religious message. But a few months later, the U.S. 5th Circuit Court of Appeals in New Orleans ruled that a "nonsectarian" graduation prayer is permissible if it is led by a student. Under this decision in Jones vs. Clear Creek, students in Texas, Mississippi and Louisiana (which comprise the 5th Circuit) can have prayers at graduation while students in other regions cannot because their courts have concluded that the Lee vs. Weisman ruling prohibits them. Although plenty of lawyers will offer a legal opinion on whether student-led graduation prayers are allowed at a public high school, there is no definite answer to that question until such time as the Supreme Court finally revisits the issue.

Also uncertain is the constitutional status of gay rights and the "right to die" through assisted suicide.

In the past, the Court has often refused to hear appeals from gay service personnel who faced discharge from the military, but it has not ruled squarely on whether government discrimination based on sexual orientation violates the "equal protection" guarantee. The answer to that question will affect not only the military, but state laws involving marriage, adoption, estates and employment. While no test case has emerged on the Court's docket, the issue will likely arise in the next few years.

The "right to die" issue is headed back to the high court too, now that a U.S. district judge in Seattle has ruled that the Constitution protects the right of a terminally ill person to die through an assisted suicide. In the Cruzan case four years ago, the Court upheld a Missouri law that barred hospitals from removing a comatose patient from life supports unless there was clear and convincing evidence that the patient wished to die. But the Court has yet to rule on whether a fully conscious person has a right to end his or her life through an assisted suicide.

While those issues will be decided in the future, here are some of the key decisions during the 1993-94 term:

Voting Rights

The Florida case, if nothing else, illustrated the complexity of drawing electoral district boundaries in a way that will comply with the Voting Rights Act, especially in a state with large populations of both African Americans and Hispanics.

The 1982 amendments said the rights of a minority group are violated when "its members have less opportunity than other(s)...to elect representatives of their choice." However, these minorities do not have a right to representation that is "equal to their proportion of the population."

Nearly a decade ago, the Court said this meant that a minority's rights were violated when district lines were drawn in a way that "diluted" the vote of a bloc of black or Hispanic voters. In the Florida case of Johnson vs. DeGrandy, Hispanic plaintiffs had complained that boundary lines in Dade County divided several of their communities, diluting their strength. A federal judge agreed and said two more Hispanic seats could be created, although doing so might also dilute the strength of the black community.

Reversing the lower court, the Supreme Court said the Florida Legislature had not violated the Voting Rights Act. Justice David Souter noted that Hispanics make up about 50 percent of Dade County's voting-age population and have large majorities in nine of the 18 House districts devised by the Florida Legislature. Since the likely Hispanic representation will be "roughly proportional" to their voting strength, it makes no sense to say their voting strength has been diluted, he said. "One may suspect vote dilution from political famine," Souter commented, "but one is not entitled to suspect (much less infer) dilution from the mere failure to guarantee a political feast."

In the Georgia case, Holder vs. Hall, the justices overturned a voting rights challenge to Bleckley County's single-commissioner form of government. Black voters, who make up 20 percent of the county, said that allowing one official to hold executive and legislative power bars them from having a voice in government. The U.S. Appeals Court in Atlanta agreed.

But the high court threw out the challenge on the grounds that there is no "benchmark" for deciding what would be a reasonable size for the governing body. Had the Court demanded the county have five commissioners so as to give representation to blacks, another county could be required to elect 20 commissioners in order to represent a 5 percent minority, said Justice Kennedy. In a long concurring opinion, which served as their dissent for the Florida case, Justices Clarence Thomas and Antonin Scalia said that, 25 years of precedent to the contrary, they believed the Voting Rights Act did not cover matters of redistricting.

Property Rights

The Fifth Amendment says clearly that "private property (shall not) be taken for public use, without just compensation," but the justices have had a hard time drawing a clear line between the reasonable regulation of development and a "taking" of property.

The Court's latest decision in Dolan vs. Tigard is not very clear either, but it tilts the law slightly in favor of the property owner. On a 5-4 vote, the Court said city officials in Tigard went too far when they demanded the owner of a plumbing supply shop dedicate 10 percent of her property for a bike path and "greenway" in exchange for a building permit to double the size of her store. Why? Because the city did not prove there was a "reasonable relationship" between the additional auto traffic that would be drawn to the larger store and the city's desire to extend its bike path, said Chief Justice William H. Rehnquist. "No precise mathematical calculation is required," but officials must show that "the required dedication is related both in nature and extent to the impact of the proposed development," he wrote. This marked the first time the Court has said explicitly that government officials bear the burden of proving that the exaction is justified.

Taxes

Since the 1970s, California lawmakers have ruffled feathers in foreign capitals as well as in Washington, D.C., by calculating state taxes based on a percentage of the worldwide business of a global firm. Most nations and most states simply tax the company's reported profit in its jurisdiction, but that "separate accounting" method can permit foreign firms to hide profits.

Over the years, Treasury and State Department officials have repeatedly complained about California's approach because it had angered America's trading partners. Britain, for example, threatened retaliatory taxation against U.S. firms.

Lawyers for the multinational firms hoped the high court would strike down California's tax and order refunds of up to $2 billion. They reasoned that the Constitution requires the nation to "speak with one voice" in dealing with foreign countries. But in a 9-0 opinion in Barclays Bank vs. California, the Court rejected both the attack and the reasoning behind it.

"The Constitution expressly grants Congress, not the president, the power to regulate Commerce with foreign Nations,"' observed Justice Ruth Bader Ginsburg. And Congress, despite pressure from various administrations, had refused to outlaw the unitary tax, she noted. It is up to Congress, not the courts or the executive branch, "to evaluate whether the national interest is best served by tax uniformity or state autonomy," she said. Because Congress has failed to impose limits, the 50 states remain free to set their own tax policies affecting foreign-owned firms.

However, in a setback for 20 states, the Court ruled that authorities may not seek to collect taxes on the possession of illegal drugs that also engenders a criminal penalty. To do so amounts to double jeopardy, the Court said on a 5-4 vote in Montana vs. Kurth Ranch.

Garbage

Two years ago, the Court said states cannot use high fees or legal barriers to keep out garbage or hazardous waste. In C&A Carbone vs. Clarkstown, the Court said this year that cities cannot keep in garbage by requiring that it be shipped to a municipal facility. This ruling threatens to undercut financing for such processing plants because officials can no longer depend on a guaranteed flow of trash. The private haulers said they could save money by shipping their trash to more distant landfills.

In a second ruling, Oregon Waste Systems vs. Oregon, the Court rejected the state's contention that it could charge higher fees for out-of-state trash on the theory that outsiders should pay their "fair share" of the public costs of building landfills.

Rivers

In a victory for fish, as well as for state officials, the Court ruled that a state environmental agency may require a minimum stream flow as a condition for building a hydroelectric plant. The 7-2 ruling in the case of PUD No. 1 of Jefferson County vs. Washington Department of Ecology says states have the power to protect both the quantity and quality of water in their rivers. Lawyers for the power plant said that under the Clean Water Act, the state had authority to regulate the quality of water being discharged into a stream, but not the quantity. Justice Sandra Day O'Connor derided that "artificial distinction" and said states can act to protect fish and wildlife by ensuring a reasonable flow of water.

Curfew

Without a dissenting vote, the Court refused to hear a constitutional challenge to a teenage curfew in Dallas. More than 1,000 cities and towns have enacted laws that require teenagers to be off the streets at night, but lawyers for the American Civil Liberties Union challenged these measures as unconstitutional on the grounds that they "convict the innocent...and broadly stifle fundamental liberties." While the high court's action is not a binding national ruling on the issue, it strongly suggests that the justices see no constitutional barrier to such laws. The Dallas law generally requires those under 17 to be off the streets after 11 p.m. on weekdays and midnight on weekends, although it permits exceptions for those traveling to work or to school, church or civic functions. Last year, a U.S. Appeals Court in Texas upheld the Dallas law, and the high court refused to hear an appeal in the case of Qutb vs. Bartlett.

David G. Savage is the Supreme Court correspondent for the Los Angeles Times and author of Turning Right: The Making of the Rehnquist Supreme Court.
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Title Annotation:US Supreme Court
Author:Savage, David G.
Publication:State Legislatures
Date:Sep 1, 1994
Words:2514
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