The Supreme Court’s decisions this term on civil rights and discrimination underscore the importance of who fills the next vacancies on the Court. In two crucial 5- 4 decisions this term, one more vote with Scalia and Thomas would have reversed the result in key rulings on redistricting and on the reach of federal civil rights laws. In several other cases, Scalia and Thomas helped form narrow majorities that restricted civil rights and that would be cemented by another vote like theirs on the Court.
In Hunt v. Cromartie, the question before the Court was whether a congressional district drawn by a state legislature was the result of unconstitutional racial gerrymandering. A 5-4 majority ruled that the district was not unconstitutionally drawn and rejected Scalia’s and Thomas’ extreme view that race can never be taken into account in redistricting. Citing a previous opinion written by Justice O’Connor, the majority held that when “racial identification is highly correlated with political affiliation,” evidence of the district’s shape, its splitting of towns and counties, and its high African American population cannot, as a matter of law, by itself support a finding that race was improperly the predominant factor in drawing the district. The majority explained that the Constitution does not oblige a state legislature “to avoid creating districts that turn out to be heavily, even majority, minority.” The legislators’ only obligation is not to create such districts for “predominantly racial, as opposed to political or traditional, districting motivations.” Justice O’Connor, who had aligned herself with Rehnquist, Thomas, Scalia, and Kennedy in earlier cases, provided the determining vote for the majority in this case. Justice Thomas, joined by Scalia, Rehnquist, and Kennedy, strongly dissented.
A second important 5-4 ruling came in Brentwood Academy v. Tennessee Secondary School Athletic Association. The question in this case was whether action by a not-for-profit athletic association that regulates interscholastic sports among public and private high schools in Tennessee, comprises mostly public schools, and has public school officials pervasively entwined in its structure, constitutes “state action” for purposes of federal civil rights laws. The majority ruled that such an association’s action was, indeed, state action. The dissent, written by Justice Thomas and joined by Rehnquist, Scalia, and Kennedy, would have construed the doctrine of state action much more narrowly and would have severely limited the reach of federal civil rights laws.
On the other hand, the Court in Alexander v. Sandoval dealt a sharp blow to civil rights. In a 5-4 decision written by Justice Scalia, the Court severely limited the reach of Title VI of the Civil Rights Act of 1964 by holding that individuals may not sue federally funded state agencies to remedy policies that are alleged to have a discriminatory effect on minorities, even though governing federal regulations under Title VI specifically prohibit such policies. Under the Court’s ruling, individuals may sue only when the discrimination is alleged to have been intentional. A strongly worded dissent by Justice Stevens, joined by Souter, Ginsburg, and Breyer, called the majority’s decision “unfounded in our precedent and hostile to decades of settled expectations.”
Tuan Anh Nguyen v. Immigration and Naturalization Service was brought as an equal protection challenge to a federal law that imposed different rules for “attainment of citizenship by children born abroad and out of wedlock depending upon whether the one parent with American citizenship is the mother or the father.” In another 5-4 ruling, the Court rejected this challenge, upholding rules that make citizenship automatic for children born abroad to American mothers (as long as the mothers have resided in the United States for a continuous period of one year), but impose additional burdens in the case of children born abroad to American fathers. Justice O’Connor dissented from this ruling, joined by Justices Ginsburg, Souter and Breyer. In her dissent, Justice O’Connor took the majority to task, not only for failing to confront but also for condoning stereotypical notions about mothers and fathers as well as about “male irresponsibility.” The dissent called the majority’s decision “a deviation from the line of cases in which [the Court has] vigilantly applied heightened scrutiny” to sex-based classifications in determining whether a constitutional violation has occurred. Scalia and Thomas, on the other hand, indicated in their concurrence that they would have gone even further than the other justices in the majority, stating that the Court lacked the power to provide the relief requested by the petitioners (American citizenship for the child) under any circumstances.
Scalia’s and Thomas’ extreme views regarding congressional efforts to ensure equal opportunity for all Americans were illustrated this term by their dissent in PGA Tour, Inc. v. Martin. In that case, the other seven members of the Court ruled that the Americans with Disabilities Act requires the PGA Tour to allow a disabled professional golfer whose disability prevents him from walking a golf course to use a golf cart during tournaments. Scalia’s and Thomas’s narrow view of the pertinent provision of the ADA, expressed in the dissent written by Scalia, would preclude the statute’s application in such a situation.
In Saucier v. Katz, which concerned allegations of excessive force by a police officer against a demonstrator, Scalia and Thomas were part of the Court majority (6 justices) holding that in a civil action brought against the officer by the demonstrator for violation of his Fourth Amendment rights, the question of whether the officer has qualified immunity from suit is separate from the question of whether the Constitution was violated, giving police additional protection in such suits. According to this two-step inquiry, an officer who uses force that is objectively unreasonable under the circumstances, i.e., excessive force, in the mistaken belief that use of such force was lawful, could still have qualified immunity if the mistake was reasonable under the circumstances. While Justices Ginsburg, Stevens, and Breyer concurred in the Court’s judgment that the officer under the facts of this particular case did have qualified immunity and that the suit against him should have been dismissed, they disagreed with the use of a two-step inquiry. In their opinion, if an officer used objectively unreasonable force, there can be no qualified immunity. The ruling could thus make it more difficult for those who claim they were victimized by police abuse to vindicate their rights.
Two decisions decided by narrow majorities at the end of the Court’s 1999-2000 term, after Courting Disaster was published, restricted civil rights. In Reno v. Bossier Parish School Board, a 5-4 ruling, the Court held that Section 5 of the Voting Rights Act does not apply to voting-related changes undertaken with even blatantly discriminatory intent unless they demonstrably harm minority votes. And in Boy Scouts of America v. Dale, a 5-4 majority ruled that a New Jersey civil rights law could not protect gays from discrimination by the Boy Scouts. This decision could be applied in the future to weaken other civil rights laws. Scalia and Thomas were in the majority in both of these 5-4 decisions.