[Congressional Record Volume 141, Number 117 (Wednesday, July 19, 1995)]
[Extensions of Remarks]
[Pages E1464-E1465]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           THE SUPREME COURT

                                 ______


                          HON. LEE H. HAMILTON

                               of indiana

                    in the house of representatives

                        Wednesday, July 19, 1995
  Mr. HAMILTON. Mr. Speaker, I would like to insert my Washington 
Report for Wednesday, July 19, 1995 into the Congressional Record.
                           The Supreme Court

       The U.S. Supreme Court recently completed its 1994-1995 
     term. While the subject of the Supreme Court doesn't come up 
     very often in my discussions with Hoosiers, the Court's 
     actions have a significant impact on the lives of all 
     Americans.
       This term was marked by the emergence of a strong and 
     unified conservative majority on the Court. The conservatives 
     displayed a desire to reconsider long-settled constitutional 
     principles on everything from race and religion to federalism 
     and privacy. This is a Court with an activist's appetite and 
     reach. It is the political conservatives on the Court who are 
     casting aside precedents and making new law. It is the so-
     called liberals who are constantly pushing judicial restraint 
     and respect for continuity. The conservatives on the Court 
     who for years have been deploring judicial activism are now 
     judicially very active.
       It is premature to say whether this conservative brand of 
     judicial activism will continue in future years. The 
     conservative majority holds a narrow 5-4 edge on the Court, 
     and two of the Justices, O'Connor and Kennedy, appear to be 
     reluctant activists, struggling where possible to find common 
     ground with their more liberal colleagues; and Chief Justice 
     Rehnquist is likely to retire in the near future. Even so, 
     the conservatives are, at least for the time being, making 
     their mark on the Court.
       What follows is a summary of the key decisions from this 
     term.


                           affirmative action

       The Court issued several decisions which weaken the legal 
     underpinnings of affirmative action. While all the cases were 
     decided by narrow 5-4 majorities, they reflect a strong 
     aversion to affirmative action programs and will have wide-
     ranging consequences.
       In a case involving a federal highway construction project, 
     the Court held that federal programs designed to benefit 
     minorities are unconstitutional unless they serve a 
     compelling government interest and are narrowly tailored to 
     address past discrimination. The ruling will almost certainly 
     have the effect of curtailing such programs.
       In a second case involving the Kansas City school system, 
     the Court ruled that the lower federal courts in Missouri had 
     improperly ordered the state to help pay for a major 

[[Page E 1465]]
     school integration plan. The decision underscored the Court's 
     impatience with continued federal court involvement in school 
     desegregation cases.
       In a third case involving a Georgia redistricting plan, the 
     Court held that the use of race as a ``predominant factor'' 
     in drawing district lines makes the districts presumptively 
     unconstitutional. Many states, particularly in the South, had 
     created majority-black or hispanic districts in the last 
     round of redistricting in an effort to comply with the 
     federal Voting Rights Act. The Court's decision, however, 
     raises doubts about the constitutionality of most, if not 
     all, of these plans, and may lead to the election of fewer 
     blacks to Congress.
                               federalism

       The Court also addressed fundamental questions about the 
     distribution of power between states and the federal 
     government. In one case, the Court overturned a federal law 
     banning gun possession within 1000 feet of a school. 
     Congress, in passing the law, had relied on its 
     constitutional powers to regulate interstate commerce. The 
     Court said Congress failed to prove that gun possession at or 
     near schools had enough bearing on interstate commerce to 
     justify federal involvement. The decision marked a striking 
     departure for the Court, which has, for the last 60 years, 
     tended to defer to Congressional judgment in this area. It is 
     uncertain, however, whether the decision signals a broader 
     attack on federal regulation under the Commerce Clause, or 
     merely singles out a poorly drafted law.
       In another, closely-watched case, the Court ruled that in 
     the absence of a constitutional amendment, states may not 
     limit the number of terms that members of Congress may serve. 
     The decision had the effect of overturning term-limit 
     measures approved in 23 states. The Court reasoned that the 
     Constitution had clearly set forth the qualifications for 
     service in Congress--age, residency and citizenship--and 
     those qualifications could not be further restricted by the 
     states. The House defeated a term limits amendment earlier 
     this year, but the issue will likely be revisited next year.


                          other key decisions

       The Court issued several other ground-breaking decisions 
     this term. In one case, which will certainly have an impact 
     on high schools in Indiana and around the country, the Court 
     held that a school district may require that all students 
     take drug tests as a condition of playing sports. In a 
     victory for environmentalists, the Court held that federal 
     regulators may stop private landowners from developing their 
     property in ways that could destroy the habitat of endangered 
     wildlife species.
       Two religion cases opened the door to greater government 
     accommodation of religious speech. First, the Court held that 
     the University of Virginia must provide a financial subsidy 
     to a student religious publication on the same basis as other 
     student publications. This marks the first time the Court has 
     ever approved government funding for a religious activity. 
     Second, the Court ruled the Ku Klux Klan had a free speech 
     right to erect a cross in a state park in Ohio.


                               Conclusion

       This Court is engaging in a very fundamental debate on the 
     very nature and source of the legitimacy of the national 
     government. Several of the Justices have said that the 
     federal government exists only to the extent that the states 
     permit it to do so. This Court has a very deep skepticism 
     about federal power.
       Conservatives now control the Court, and even the left 
     leaning Justices are hardly in the same camp as Blackmun, 
     Brennan or Marshall. The Clinton appointments, Ginsburg and 
     Breyer, are moderate on economic issues and fairly liberal on 
     social issues. What's missing is a justice who sees the Court 
     as a way to promote social justice. The new left is much more 
     pragmatic than the old left.
       Whatever the center of the Court ideologically speaking, it 
     can be said that the present majority is fragile. The 
     replacement of a single justice could make a big difference 
     in the dynamics of the Court.
     

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