Author: Douglas W. Kmiec

The Supreme Court finished its term late last week, and the general reaction from pundits was, “Well, what was that all about?” Unlike past terms, when the Court decided everything from when life begins (the abortion issue) to when it ends (assisted suicide), this session was dominated by few high-profile cases. Instead, for the most part, the court did lawyers work, interpreting statutes and telling lower courts where they went astray. This may be the ultimate manifestation of the Rehnquist court’s posture of judicial restraint: Take few cases and, in taking them, say as little as possible.p. p. Many of the court’s holdings fall into the category of common sense. For example, in National Endowment for the Arts vs. Finley, the court held that the NEA was under no constitutional obligation to fund art that disregards general standards of decency.p. Karen Finley, who had received public funding in the past for smearing chocolate on her nude body while uttering “God is death,” was distressed by this. She argued that a decency consideration was impermissible censorship.p. Nope, said Justice Sandra Day O’Connor, Congress has wide latitude to set spending priorities. Justice Antonin Scalia was even more blunt: “Avant-garde artists such as (Finley) remain entirely free to epater (shock) les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeois taxed to pay for it.”p. The independent counsel also took it on the chin from the Supreme Court. You’ll remember Kenneth Starr wanted to spoil the court’s vacation by rushing a hearing on various of President Clinton’s more spurious claims of executive privilege. Nothing doing, said the court, we’ll wait, thank you. Last week, the Supreme Court also told Starr he would have to write his report without divulging the conversations of a dead man—specifically, those of the late Vincent Foster, a deputy White House counsel who, we are told, committed suicide.p. Said Chief Justice William Rehnquist: “It has been generally, if not universally, accepted for well over a century that the attorney-client privilege survives the death of the client.” Starr’s weak argument to the contrary boiled down to little more than: I have this big criminal case possibly involving (wink, wink) the president of the United States. Makes no difference, observed the court, refusing to bend well-settled doctrine merely because a case is in the headlines.p. Last year the court reminded the president that he was not above the law; this year it accorded his interests the benefit of it as well. Not bad for a so-called conservative court.p. The court’s handiwork might complicate Clinton’s litigation defense in other ways, however. In deciding that employers could be liable for sexual harassment by supervisors even when there were no adverse employment consequences, the justices gave potential new life to Paula Jones’ appeal. Certainly, the decision suggests that Jones’ complaint should not have been dismissed without a trial and reasonable inquiry into whether she failed to take advantage of any opportunity to avoid the harm.p. Another case raised the issue of discrimination against the handicapped. Sidney Abbott has asymptomatic HIV infection, the early stage of AIDS. In seeking to get a cavity filled, she disclosed this to her dentist, Dr. Randon Bragdon, who promptly refused to do the simple procedure except in a hospital.p. Abbott thought this constituted discrimination against the disabled, and she was right. According to federal statute, disability means being substantially impaired in the exercise of a major life activity. For example, it is undeniable that Abbott is much less likely to ever give birth to a healthy child.p. The dentist argued that reproduction is not so major, but this belies cultural reality. It also disregards clear legislative intent. Ten years ago, I encountered a similar issue at the Department of Justice and reached virtually the same opinion. The dissenting justices may disagree with the legislative choice to treat a contagious disease as a handicap, but those in the majority deserve credit for not redrafting the statute. Responsibly, too, the court held that if a dentist is to refuse treatment, he can only do so based on objective scientific evidence, not irrational prejudice.p. The court did decide one notable constitutional case, striking down the line-item veto. Allowing presidents to repeal parts of existing laws by the stroke of a pen just doesn’t square with the constitutional assignment of lawmaking to Congress. Item vetoes may be good for eliminating wasteful pork-barrel spending, but the justices resisted the temptation to be policymakers and kept to their role as interpreters of our written charter.p. In sum, other than the line-item veto, the court’s docket raised few profound constitutional questions. Its outcomes won’t prompt major demonstrations or news stories. The arcane and difficult work of statutory interpretation seldom does.p. Hoeing the line of the legal journeyman rather than the philosopher-king may be less glamorous, but it does nourish democracy. The fair resolution of disputes that loom large in individual lives is not only a more noble pursuit than presuming to specify the nuances of every citizen’s moral code, it’s also the court’s job.p. This year at least the Supreme Court understood that. The message: If you want a blockbuster, rent a video.

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