The “new” Supreme Court – with John Roberts at the helm as Chief Justice and Samuel Alito in place of Sandra Day O’Connor -- is issuing important decisions as its 2005-06 Term winds down. We’re seeing some troubling decisions and ominous warning flags, interspersed with occasional good news.
- Good news for victims of discrimination in the workplace who are penalized for complaining, and for victims of domestic violence. Burlington Northern & Santa Fe Railway v. Sheila White was brought by a forklift operator in a railroad yard who was transferred to less desirable job duties and suspended without pay after she complained of sexual harassment. The Court unanimously ruled that this kind of retaliation is prohibited by Title VII, the federal law against discrimination on the job. All the Justices except Alito rejected the argument of the railroad and the Bush Administration for a more limited protection against retaliation – a standard that, as NWLC Co-President Marcia Greenberger put it, “would have created a hole in civil rights protections large enough to drive a forklift through.” In another case, the Court ruled unanimously that a domestic violence victim’s 911 call can be admitted into evidence at trial even if the victim is not present for cross-examination, recognizing that women are often afraid to appear in court in these cases because of intimidation from their abusers – although it did not extend that principle to victim statements to police when there is no emergency in progress.
- But new conservative block rears its head, showing impact of Justice O’Connor’s departure. In other important cases, a solid block of four conservative votes has been sticking together: Justices Scalia, Thomas, Alito and Roberts. When Justice Kennedy, also a conservative, joins them to make a majority, the court’s rulings can look very different from its decisions when Justice O’Connor was on the court. One example is Hudson v. Michigan, in which the Court ruled 5-4 (opinion by Scalia, with Kennedy joining the hard core four) that even though the Constitution requires police with a search warrant to “knock and announce” themselves before entering someone’s home, when they fail to do so the evidence they obtain may nonetheless be used in court. The four dissenters (Breyer, Stevens, Souter, Ginsburg) called this a “significant departure” from past precedent, and suggested that it may be the beginning of the end of the longstanding “exclusionary rule” whereby evidence obtained in violation of constitutional rights must be excluded from trial. The press noted that it was clear Justice Alito cast the decisive vote because the Court was evenly split after Justice O’Connor retired, and the case had to be re-argued to break the tie once Justice Alito took her place.
One editorial said this ruling “means that while the Constitution is on your side, the Supreme Court isn’t.” We’ll find out all too soon whether it means the same thing with respect to the right to choose and affirmative action in particular, since the Court has agreed to hear cases involving those issues next fall. - Federal power to protect the environment, and other national concerns, at risk. A case involving the scope of the Clean Water Act is another example of how extreme the four-vote block of conservatives can be. In Rapanos v. United States, Justices Scalia, Thomas, Alito and Roberts went too far even for Justice Kennedy, when they took a shockingly narrow view of the application of the Clean Water Act to the nation’s wetlands and waterways. Justice Kennedy broke ranks with them – although he did not join the more expansive reading of the law offered by Justice Stevens and the other three dissenters, either. He offered his own approach, which is now the governing one since neither of the others commanded five votes.
Following these decisions, one scholar commented: “This is what everybody expected when O’Connor left the court. . . . Roberts and Alito push[ing] the court to the right. . .“ Time will tell just how profound and extensive their impact will be.
