The "bold conservatism of the Rehnquist majority" (to borrow from a June 27 front-pager in The Washington Post) was once again a dominant theme in news coverage of the Supreme Court’s annual end-of-term June rush.
     
There is some truth in such characterizations. The five more-conservative Justices have boldly moved the law to the right in a few areas — especially in the three 5-4 decisions on June 23 expanding (unduly, in my view) states’ rights.

But the "conservative" label does not really fit such decisions as the three on June 22 limiting the class of people who can sue employers (and others) for alleged violations of the nine-year-old Americans With Disabilities Act. As is indicated by the 7-2 votes in two of those cases (not to mention the 9-0 vote in the third), other concerns — transcending the usual ideological categories — were at work.

The reality is that the Court has only three consistent conservatives — Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas — and that these three prevail in close cases only when they stick together and are joined by both of the moderates at the Court’s center, Justices Sandra Day O’Connor and Anthony M. Kennedy.

That is what happened in just over half of this year’s 5- 4 decisions. But there was nothing very conservative about many of the others, including those striking down (by 7-2) a California law limiting welfare benefits for newly arrived residents; voiding (by 6-3) a Chicago anti-gang ordinance as giving police too much power to arrest innocent people for failing to disperse when so ordered; subjecting school districts (by 5-4) to federal lawsuits for "deliberate indifference" to "severe and pervasive" student-on-student sexual harassment; and striking down (unanimously) a federal law barring broadcast advertising for casino gambling.

When I read the Washington Post story about trial lawyers ”gearing up to mount a major assault on the former makers of lead paint,” with city and state officials around the country as their clients, an Oliver Cromwell quote came to mind.

”You have (been) too long here for any good you have done,” Cromwell told the Rump Parliament in 1653. ”Depart, I say, and let us have done with you. In the name of God, go!”

The entrepreneurial lawyers who have gotten very, very rich by targeting whole industries–first asbestos, breast implants, contraceptives, tobacco; now guns, computers; next paint, HMOs, liquor, food, chemicals–have done some good in their time. The grave health risks posed by asbestos, for example, and the documentation of the vile and devious tactics employed by the tobacco companies as they addicted and poisoned their customers, were exposed in large part by the efforts of trial lawyers.

But as they have become bolder and richer–and especially as they have teamed up with state and local officials in search of easy revenues–the trial lawyers (with the help of judges and juries) have imposed ever-greater costs on us all in lawsuits that bring ever-fewer benefits.

Take the lawyers’ new plans to seek recovery of government money spent to remove lead paint from housing and other costs associated with lead paint poisoning. Any liabilities will be imposed on companies whose current managements have never sold the stuff. (Lead paint was outlawed nationally in 1978 and widely discontinued long before.) And by the time the liabilities have been spread around–through insurance, higher paint prices, and the like–the costs will have little impact on the profits of any corporate malefactors. Rather, they will ripple through the whole economy.

Contrary to recent publicity, insists Deputy Assistant Secretary Arthur L. Coleman, No. 2 in the Education Department’s Office for Civil Rights, his office is not trying to scare educators out of using standardized tests. Nor, he says, is Education trying to force perpetual use of racial preferences in admissions at America’s elite colleges.

Coleman seems a sincere and idealistic fellow, and I take him at his word. But whatever his office’s intent, the draft policy manual that it circulated to educators last month is, to be blunt about it, a pretty scary document.

The draft — titled "Nondiscrimination in High-Stakes Testing: A Resource Guide" — is to be issued in final form this fall, after comments by interested groups (among them the College Board and the National School Boards Association) are considered. The guide should prompt Congress to hold oversight hearings on whether the Administration’s reading of our civil rights laws is at odds with efforts by school systems and universities around the country to measure and compare individual students’ academic achievement and potential, the better to make informed placement and admissions decisions and to raise academic standards.

The draft guide, cast in politely intimidating language, is a jarring blend of tendentious and confusing legal analysis. Its message to college admissions officers, and to state and local school administrators who use standardized tests in local schools to, say, place students in special-education programs and to determine if a student is qualified for a high school diploma, is essentially this:

Such episodes as a North Carolina grammar school’s much- mocked suspension of a 6-year-old boy for kissing a 6-year-old girl on the cheek, in 1996, may become more commonplace thanks to a well-intentioned but ill-conceived May 24 Supreme Court decision.

Of course, that was not what Justice Sandra Day O’Connor intended when she wrote the 5-4 decision holding that schools (and universities) that receive federal money can be sued for damages for "deliberate indifference" to the need to protect their students from serious harassment.

But sexual harassment lawsuits have proved to be a juggernaut of unforeseen destructive power — helping some victims, but taking a heavy toll on privacy, freedom of expression, and normal human relationships — since the Court authorized them in the workplace 13 years ago.

Justice Anthony M. Kennedy may have exaggerated in writing for the four dissenters that the decision, Davis vs. Monroe County Board of Education, would produce a "flood of liability," potentially "crushing" school districts. But even if the liability does not reach flood stage, the ruling could do far more harm than good.

Most Supreme Court cases raise hard issues. A few deal with easy ones. Two such cases provide the backdrop for the May 24 decision holding–with a unanimity that is rare in Fourth Amendment cases–that the Constitution bars police from taking news reporters and photographers into homes without the residents’ consent.

The ruling was a welcome vindication of what Chief Justice William H. Rehnquist called ”the right of residential privacy at the core of the Fourth Amendment.” So why had 24 of the nation’s leading news-and-entertainment organizations urged the Justices to rule the other way–to bless media invasions of privacy piggybacked on police raids?

Why had they suggested in a friend-of-the-court brief that journalists should be able to violate the sanctity of your home–perhaps even to come peering into your bedroom–just about any time the constabulary opts for publicity while executing a search or arrest warrant?

Why, for that matter, had some of the same news organizations filed another brief, in March 1998, urging the Justices to uphold the claim of Paladin Press–publisher of a murder manual titled Hit Man: A Technical Manual for Independent Contractors–to First Amendment immunity from liability to the families of three victims of a contract killer who had meticulously followed the book’s instructions?

Paladin settled the case on May 21 for an unspecified sum in the millions, spurred in part by a Michigan jury’s $ 25 million verdict on May 7 against Warner Bros.’ The Jenny Jones Show. That award resulted from a lawsuit by the family of a gay man who was shot to death after a prearranged, surprise announcement during a taping that he had a crush on another male guest.

While racial gerrymandering of election districts is unconstitutional, race-conscious political gerrymandering is not.

That is the sensible message of the Supreme Court’s May 17 decision holding unanimously that the boundaries of a North Carolina congressional district had not been proven unconstitutional–not yet, at least–and sending the case back to a lower court for further proceedings.

Justice Clarence Thomas’ brief opinion (joined by four other Justices) in the case, Hunt vs. Cromartie, may help steer the Court’s history of conflicted and confusing jurisprudence in this area toward a coherent resting place.

It at least gives states a better road map on how to get through the decennial redistricting after next year’s census without running afoul of the courts. And it represents the clearest acknowledgment so far by the Court’s conservatives that the redistricting process cannot be made completely ”colorblind,” because the politicians who draw the lines cannot help but be aware of racial voting patterns.

In past decisions, Thomas and the four other conservative Justices have struck down the blatant racial gerrymandering that the Justice Department for years pressured states to adopt in order to create as many majority-black and majority-Hispanic districts as possible.

Now these five have joined the four more-liberal Justices in specifying that the Court will allow states to engage in political gerrymandering even when the results include heavily black or Hispanic districts.

The Supreme Court has set the stage for a momentous ruling next year not only on whether the Food and Drug Administration can regulate tobacco — and perhaps even ban it someday — but also, more broadly, on the powers of the President and his appointees to make law without a clear congressional mandate.
     
This is one of those hard cases that is likely to make bad law no matter how well the Justices do their jobs. A win for either side might well have important — and troubling — consequences.

A victory for the Clinton FDA could indirectly diminish the role and stature of the legislative branch by pushing to new heights the powers of executive branch agencies to make law. An FDA loss, on the other hand, could result in more tobacco addiction and tobacco-related deaths than would otherwise occur, and could cast a legal cloud over other agencies’ bold initiatives.

The best (if least likely) outcome would be for Congress to moot this case by shaking off the partisan paralysis into which it has sunk — on issues ranging from Kosovo to Social Security — and passing a comprehensive, regulatory regime specifying how the FDA and other agencies should seek to cut down the tobacco death toll of 400,000 Americans a year.

But Congress failed to do that last year — in part because so many members are addicted to tobacco money. One result was a policy vacuum, which was partially filled by the far-from-perfect $208 billion financial settlement last November to end the lawsuits by 46 state attorneys general against the tobacco industry. The settlement included some advertising restrictions but no comprehensive plan to protect children from tobacco addiction.

It was 2002, and the big law firm’s profits were down. So when nine senior associates came up for promotion to partnership, only Jane made the cut. During the next few months, the eight others — Tom, Bill, Harry, Kirk, George, Sally, Peggy, and Mary — sued the firm, one by one. All of them complained of job discrimination. And each of them belonged to a group enjoying special protection under the ever-more-encompassing federal civil rights laws.
     
Tom sued under the Clinton-sponsored 1999 law protecting parents against workplace discrimination. He claimed that the firm’s partners had criticized him for billing "only" 2,000 hours that year and for seeking to avoid weekend and travel assignments to make time for things such as coaching his daughter’s soccer team.

Bill sued under another new law: the one barring discrimination based on sexual orientation. Among his complaints was that the firm’s partners had excluding him and his live-in companion from networking get-togethers with their families, and had pressed him harder to work weekends than they had pressed co- workers with children (like Tom).

Harry, a 45-year-old former schoolteacher who had made a mid-career switch to law, sued for age discrimination. Kirk accused the almost all white partnership of racial discrimination. George, who had recently lost his eyesight, sued for discrimination against the disabled. Sally sued for pregnancy discrimination: She received only dead-end assignments after her second maternity leave. Peggy sued for discrimination based on her religion (fundamentalist Christian), saying she had been treated like a member of a strange cult.

While fueled by demagogic rhetoric and political opportunism, the current uproar over allegedly racist police practices in New York City and elsewhere has spotlighted one clearly abusive practice that moderates, conservatives, and, indeed, police chiefs should join liberals in assailing: racial profiling. That is the apparently widespread police habit of using skin color or ethnicity as a factor in deciding whom to stop and search for evidence of crime.

Just this week, New Jersey Gov. Christine Todd Whitman admitted that a 111-page internal review had confirmed a 1996 judicial ruling that some state police officers had engaged in racial profiling in deciding which cars to search during traffic stops on the turnpike.

Around the country, thousands of minority-group members have been humiliated by police stops and searches, often for conduct no more suspicious than "driving while black" or walking the streets of their communities. This, in turn, has helped to breed a deeply corrosive mistrust of law enforcement.

The full extent and the perniciousness of racial profiling are difficult to grasp for those of us who have not been targeted. The practice is virtually invisible to whites, except in the minority of cases in which police find illegal drugs or guns and make arrests. Almost all police organizations deny that they condone racial profiling. It is easily camouflaged by nonracial pretexts for searching cars and pedestrians; and it is sometimes confused with proper police work.

It is inarguable that NATO’s bombing of Yugoslavia — provoked by atrocities in a civil war in a sovereign nation that has not attacked any NATO member — is hard to square either with the United Nations Charter or with the 1949 treaty that created NATO itself.
     
But for Americans, there is a more fundamental question: Can it be squared with the Constitution?

That document reserves the power "to declare war" to the Congress. And although the meaning of this phrase has evolved over time, the framers clearly intended to bar Presidents from doing what President Clinton has done: sending U.S. forces into hostilities abroad without explicit votes of approval from both House and Senate.

(The Senate, in a nonbinding vote on March 23, approved U.S. participation in NATO "military air operations and missile strikes"; the House, in a March 11 vote, authorized only a "peacekeeping operation, implementing a Kosovo peace agreement," which later fell through.)

These problems have received little attention because of an ever-more-pervasive assumption: that the original understandings of the Constitution, the U.N. Charter, and the North Atlantic Treaty are anachronisms, and that these legal texts should be stretched, twisted, or even ignored as necessary to cope with today’s exigencies.

My colleague Clive Crook, for example, noted in his April 10 column that "NATO’s actions are illegal both under the terms of the U.N. Charter and according to the alliance’s own rules" — only to add that this was not a good reason to let "the slaughter of the Kosovars proceed."