[Congressional Record Volume 142, Number 124 (Wednesday, September 11, 1996)]
[Extensions of Remarks]
[Page E1580]
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, September 11, 1996

  Mr. HAMILTON. Mr. Speaker, I would like to insert my Washington 
Report for Wednesday, September 4, 1996 into the Congressional Record.

                           The Supreme Court

       The U.S. Supreme Court recently completed its 1995-1996 
     term. Hoosiers don't often talk to me about the Court, but 
     its actions have a wide-ranging impact on our daily lives and 
     have important consequences for Congress as well. Under our 
     constitutional system of checks-and-balances, the Court's 
     decisions help define the limits of congressional authority.
       The Court in recent years has been marked by the emergence 
     of a conservative majority. Its conservatism is marked by a 
     preference for law enforcement in the area of criminal law, 
     by a general skepticism of affirmative action, and by a 
     sympathetic view of state powers in our federal system of 
     government. This Court has worked on several occasions to 
     enhance the powers of the states at the expense of Congress.
       But the conservative majority is not monolithic. Justice 
     Antonin Scalia is perhaps the most ardently conservative 
     voice on the Court, but his sharp and bitter dissents, often 
     directed at fellow conservatives, suggest his influence has 
     diminished. The decisive votes on key decisions, in contrast, 
     belong to the two ``moderate'' conservatives, Justices Sandra 
     Day O'Connor and Anthony Kennedy. Both are conservative, but 
     not predictably so. In some areas of the law, most notably 
     redistricting and state-federal relations, O'Connor and 
     Kennedy have joined their conservative colleagues to upset 
     long-settled constitutional principles. But in other areas, 
     often involving individual liberties, the two Justices have 
     taken a pragmatic, incremental approach, forging narrow 
     majorities with their more liberal colleagues.
       The number of petitions arriving at the Supreme Court has 
     climbed to about 7,000 a term, but the Justices are taking 
     and deciding fewer cases. This term, the Court issued the 
     fewest written opinions (just 75) in more than 40 years. This 
     trend reflects in part the judicial philosophy of the Court's 
     conservative majority--that the Court should defer to elected 
     lawmakers on policy matters and should let legal issues 
     percolate in the lower courts before weighing in.
       What follows is a summary of the key decisions from this 
     term.


                           individual rights

       The highest profile cases decided this term involved 
     individual rights. Justices O'Connor and Kennedy were the 
     swing votes. Both have rejected government policies which 
     seek to classify people--to their advantage or disadvantage--
     by race, gender or sexual orientation.
       In an important sex-discrimination case, the Court ruled 
     that the men-only admissions policy at the Virginia Military 
     Institute, a state-supported college, was unconstitutional 
     and that the alternative program the state had devised for 
     women was an inadequate substitute for admitting women to the 
     military college. The Court also struck down a Colorado state 
     constitutional amendment that nullified existing civil rights 
     protections for homosexuals and barred the passage of any new 
     laws protecting them at the state or local level.
       The Court invalidated four congressional districts in Texas 
     and North Carolina which included a majority of minority 
     voters. The Court held that the use of race as a 
     ``predominant factor'' in drawing district lines made 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 Justice Department interpretations of 
     the federal Voting Rights Act. The Court, in the last two 
     terms, has thrown out several of these maps, and will likely 
     revisit the issue next term.


                               federalism

       The Court also addressed fundamental questions about the 
     distribution of power between states and the federal 
     government. The conservative majority has acted in recent 
     years to curb the reach of federal authority, particularly 
     when it may intrude on state powers. Last year, for example, 
     the Court overturned a federal law banning gun possession 
     within 1000 feet of a school.
       This term the Court curbed the authority of Congress to 
     subject states to lawsuits in federal courts. The case 
     centered on a 1988 gaming law that gave Indian tribes the 
     right to sue states in federal court to bring them to the 
     bargaining table over terms for opening casinos. The Court 
     held that the Eleventh Amendment to the Constitution forbids 
     Congress from authorizing private parties, including Indian 
     tribes, to bring lawsuits in federal court against 
     unconsenting states.


                          other key decisions

       The Court issued several other important decisions this 
     term.
       The Court decided several important cases relating to free 
     speech. The Court struck down a provision of a 1992 federal 
     law permitting cable television stations to ban indecent 
     programming on public access channels. It also ruled that 
     political parties could not be limited in the amount of money 
     they spend on behalf of their candidates as long as the 
     expenditures are independent and not coordinated with the 
     candidate. In a third case the Court said independent 
     government contractors could not be fired for failing to show 
     political loyalty. In addition, the Court struck down laws in 
     Rhode Island and other states that prohibited the advertising 
     of beer and liquor prices.
       In the area of criminal law, the Court upheld provisions of 
     a new federal law setting strict limits on the ability of 
     federal courts to hear appeals from state prison inmates who 
     have previously filed a petition challenging the 
     constitutionality of their conviction or sentence. The Court 
     also held that the government may seize cars, houses and 
     other property used for criminal activity even if the actual 
     owner of the property did not know about the wrongdoing.


                               conclusion

       Conservatives now control the Court, and even the liberal-
     leaning Justices, including Clinton appointees Ruth Bader 
     Ginsburg and Stephen Breyer, are much more pragmatic than the 
     old left. They are moderate on economic issues and fairly 
     liberal on social issues, but often side with the 
     conservative majority in criminal law cases.
       The ideological center of the Court has moved to the right 
     over the last few years, but the conservative majority is 
     fragile. Only three Justices--Scalia, Thomas and Rehnquist--
     are reliably conservative, and overall the conservatives hold 
     a narrow 5-4 advantage. The replacement of a single Justice 
     could make a significant difference in the dynamics of the 
     Court.

                          ____________________