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Any doubts about the Supreme Court’s central role in the national political and cultural debate were put to rest by the justices’ pronouncements last week. On Dec. 2, the Court agreed to reconsider landmark rulings on two contentious issues — affirmative action at public universities and gay rights. The cases, which will be argued in March or April, will likely be decided this term. Two days later, the justices heard oral arguments in a case involving Miranda v. Arizona, and in another testing the rights of abortion protesters. The affirmative action cases — Grutter v. Bollinger, No. 02-241, and Gratz v. Bollinger, 02-516 — involve the University of Michigan and represent the first time since the landmark 1978 Bakke case that the justices have looked at affirmative action in higher education. “The issue is nothing less than whether the doors of opportunity remain open for students of color at highly selective institutions,” says Theodore Shaw, associate director of the NAACP Legal Defense and Educational Fund, who helped defend the Michigan programs in the court below. “The Court is clearly serving notice to all interested parties that ‘high noon’ is fast approaching,” says Terence Pell, chief executive officer of the D.C.-based Center for Individual Rights, which represents white students challenging the Michigan policies. The Court has grown increasingly critical of government-backed programs that use race as a plus factor in benefits or contracts. Justice Sandra Day O’Connor, often the swing vote, has joined the majority in these cases. But her vote on affirmative action at a public university is less certain. The key issue will be how much weight the justices give to the decisive opinion in Regents of the University of California v. Bakke. While striking down quotas in university admissions, the late Justice Lewis Powell Jr. wrote that universities could use diversity as a factor when deciding among applicants. “Overruling Bakke would produce the immediate resegregation of many — and perhaps most — of this nation’s finest and most selective institutions,” Maureen Mahoney of D.C.’s Latham & Watkins told the Court in a brief for the University of Michigan. “A blanket prohibition on the consideration of race in admissions for diversity purposes would cut the representation of African-American students at selective universities by more than two-thirds, and at accredited law schools by more than three-fourths.” But critics of affirmative action dispute those figures and predict that the Supreme Court will finally put an end to programs that in their view clearly violate equal protection guarantees of the Constitution. “I was rejected by the university because I had the wrong skin color,” says white student Jennifer Gratz, named plaintiff in one of the Michigan cases, “and I’m hoping the Supreme Court will put an end to such discrimination sooner rather than later.” Underlining the historic nature of the affirmative action review, the Court took the rare step of reaching down and taking over one of the Michigan cases even though it had not yet been ruled on by the U.S. Court of Appeals for the 6th Circuit. Both Grutter, involving law school admissions, and Gratz, challenging undergraduate admission policies, were argued before the 6th Circuit en banc on Dec. 6, 2001. On May 14, the 6th Circuit handed down a 5-4 decision in Grutter, upholding the law school admissions policy and ruling that diversity was a compelling state interest that could justify affirmative action at a state university. The May 14 ruling also noted that the Gratz decision was “forthcoming,” but nothing has been heard since. The 6th Circuit may have been sidetracked partly because of a bitter internal court dispute that surfaced in the Grutter ruling over whether oral arguments in the case were timed by the majority to exclude conservative judges who took senior status while the case was pending. As the appeal of the Grutter decision made its way to the Supreme Court, parties on both sides asked the Court to take Gratz too, in spite of the 6th Circuit’s inaction. Under its Rule 11, the Supreme Court can grant certiorari before a judgment is issued below only when parties have shown the case is “of such imperative public importance” that a deviation from procedure is necessary. The Court invoked its authority in United States v. Nixon, the 1974 case involving Watergate tapes, and before that in some of the school segregation cases that were companions to Brown v. Board of Education in 1954. REVISITING BOWERS The Texas gay rights case the Court agreed to review is Lawrence v. Texas, No. 02-102. It poses the prospect that the Court will revisit the 1986 decision in Bowers v. Hardwick, which upheld Georgia’s anti-sodomy law. “It means the Court has seen the serious constitutional problems with laws that criminalize oral and anal sex by consenting gay couples and is willing to look at them closely,” says Ruth Harlow, legal director of the Lambda Legal Defense and Education Fund, which brought the challenge to the Texas law on behalf of John Lawrence and Tyron Garner, two men arrested in 1998 for “deviate sexual intercourse.” Texas defends the law as a valid state expression of moral values and argues that Bowers should not be overturned. Homosexual conduct, says Assistant Harris County District Attorney William Delmore III, “could not conceivably have achieved the status of a fundamental right in the brief 16 years since Bowers was decided.” Ironically, the late Justice Powell figures prominently in the gay rights case as well as in the affirmative action debate. Powell was part of the 5-4 majority that upheld the Georgia sodomy law in Bowers, but later voiced regret over his vote. “I think the sodomy case gives the Court an opportunity to correct the tragic blunder it made by the margin of a single vote,” says Harvard Law School professor Laurence Tribe, who argued against the Georgia law in Bowers. “I have long predicted that all that prevented Bowers from being overruled was a case that presented the Court with a good vehicle for taking that necessary step. Lawrence v. Texas provides the ideal vehicle.” Justice John Paul Stevens presided over the Dec. 2 Court session. Chief Justice William Rehnquist is recuperating from knee surgery to repair damage suffered in a fall at his home Nov. 21. Rehnquist was in the Court building on Monday, but not on the bench. Stevens announced that Rehnquist would participate in the cases argued Monday after reviewing briefs and oral argument transcripts. WARNING SIGN FOR MIRANDA? In a California case that could undermine the Supreme Court’s legendary 1966 Miranda v. Arizona ruling, the Court on Dec. 4 considered whether police interrogation of a suspect in the absence of a Miranda warning violates the Fifth Amendment if the suspect’s statements are never used at trial. Civil liberties advocates worry that if no violation is found, police will have less incentive to give the Miranda warning, which advises suspects that they can remain silent and that whatever they say could be used against them at trial. The dramatic facts of Chavez v. Martinez, No. 01-1444, prompted several justices to express sympathy with the suspect in the case, Oliverio Martinez, who was questioned by Oxnard police after they shot him five times in 1997 during a search in connection with a drug investigation. He was stopped after riding his bicycle in an area under surveillance. According to police, Martinez tried to flee. He was caught and struggled with one officer, who claimed that Martinez was carrying a large knife. Another officer then shot Martinez five times. “Police know they are not supposed to beat up defendants,” said Justice Stephen Breyer at one point. But whether concern about the police conduct in the case translates into a Fifth Amendment ruling in the defendant’s favor is far from certain. Several justices suggested that the police actions might instead have violated substantive due process requirements under the 14th Amendment or the reasonable search and seizure clause of the Fourth Amendment. The bullets blinded and partly paralyzed Martinez, now 29 years old. But officer Ben Chavez questioned him at the hospital — without giving him the Miranda warning — even as medical personnel told him the interview should end and Martinez refused to talk. Eventually Martinez said he had used heroin that day, but he was never charged with any crime. Martinez filed a Section 1983 lawsuit asserting that his constitutional rights had been violated by the officers. The police claimed qualified immunity, arguing that it was not “clearly established” that their actions were unconstitutionally coercive. The district court and the U.S. Court of Appeals for the 9th Circuit sided with Martinez, with the 9th Circuit finding that his rights under the Fifth and 14th amendments were violated. The fact that his statements were never used against him at trial was irrelevant, the court said, because “the Fifth Amendment’s purpose is to prevent coercive interrogation practices that are destructive of human dignity.” So the issue before the Court was whether the Fifth Amendment protects against coercive questioning per se, or just prevents the fruits of such questioning from being used at trial. The relevant part of the amendment says no person “shall be compelled in any criminal case to be a witness against himself.” Lawrence Robbins of Robbins, Russell, Englert, Orseck & Untereiner in the District argued on behalf of the police that the Miranda issue is “an utter red herring.” Upholding the 9th Circuit, Robbins said, would signal to police that they could be sued under Section 1983 if they violate Miranda. “I acknowledge there was coercion in this case,” Robbins said. “The facts of the case were tragic.” But the officers were still entitled to qualified immunity for their acts, Robbins noted. They would have been “derelict in their duty,” he said, if they had not questioned Martinez. Deputy Solicitor General Paul Clement also argued in support of the police. The Fifth Amendment, he said, “safeguards the trial process,” but is not “a direct limit on the conduct of officers.” Richard Paz of Los Angeles represented Martinez and said that Dec. 4 marked the first time his opponent had acknowledged that the interrogation of his client was coercive. He said the concession exemplified “the journey of ever-changing theories in this case.” Under questioning from several justices, Paz made concessions of his own, acknowledging that under emergency circumstances, police might sometimes be justified in using coercive questioning. But Paz said his client told police at least twice that he did not want to talk. “A person has the dignity to say, ‘I don’t want to speak,’ ” Paz said. PROTESTERS, RICO, AND FREE SPEECH First Amendment concerns crept into the Dec. 4 debate over whether anti-extortion and racketeering laws can be used to punish and prevent protests that block abortion clinics and intimidate staff and patients. When the Court agreed last April to consider Scheidler v. National Organization for Women, Nos. 01-1118 and 01-1119, it specifically excluded from its review the question of whether using RICO and the Hobbs Act as tools against aggressive clinic protests violated protesters’ free speech rights. But at oral arguments, the First Amendment came up often as justices and lawyers wondered aloud whether protesters ranging from Carry Nation to Martin Luther King Jr. would be labeled extortionists under the ruling of the U.S. Court of Appeals for the 7th Circuit in the case. When Justice Anthony Kennedy said at one point that the case had “serious First Amendment implications,” Solicitor General Theodore Olson reminded him that the First Amendment issue was not in the case anymore. “There’s always a First Amendment implication in a protest case,” Kennedy shot back. Justice Antonin Scalia lectured Olson that the case could cause the Court to “sail too close to the wind” of First Amendment problems. Justice David Souter also said the Court “should be more concerned” with the free speech issue. The dispute dates to 1986, when clinics and women’s rights groups sought new legal tools to combat aggressive forms of clinic protests. They invoked the Racketeer Influenced and Corrupt Organizations Act, originally passed to prosecute organized crime, and said that by forcing clinics to close and by interfering with their operations, protesters were in effect guilty of extortion under the Hobbs Act. The Hobbs Act violations could be used as a predicate for showing an illegal conspiracy under RICO. The Supreme Court resolved one issue in the case in 1994, ruling that a RICO claim did not require showing that the protesters’ motives were economic. After a trial in 1998, a jury found numerous Hobbs Act violations by the protesters and awarded treble damages amounting to $257,000. The judge also issued a broad injunction limiting future protests. The anti-abortion groups appealed. Roy Englert Jr. of D.C.’s Robbins, Russell, Englert, Orseck & Untereiner argued on behalf of the anti-abortion groups that the protests could not conceivably fit the definition of extortion, which includes obtaining others’ property. “My clients don’t have the [clinics'] property,” Englert said. “Control is not property. Property is property.” He noted that other protesters — ranging from People for the Ethical Treatment of Animals to disabilities rights groups to noted political activists Daniel and Philip Berrigan — had filed briefs on his side, concerned that their activities could also be chilled by the Hobbs Act. Olson argued for the Bush administration, which straddled both sides. On the one hand, it argued that RICO does not give private parties the remedy of injunctive relief; it also insisted the Hobbs Act applies to what the protesters did in this case. “It was a classic use of force and extortion,” Olson said. Fay Clayton of Chicago’s Robinson Curley & Clayton argued on behalf of NOW that the demonstrations implicated property rights — the rights of clinic patients. Those patients, she said, had contracted for medical services and, therefore, had a property interest. She held up a pen and said, “This is my property.” If someone held a gun to her head and said she could not use the pen, she said, she would no longer have control over the pen and it would have been “obtained” by the person with the gun. When justices cited the protests of Martin Luther King Jr. and Carry Nation, Clayton said King “didn’t tell his people to go in and bash people around.” But she conceded that Nation, who trashed saloons in the name of temperance in the early 1900s, could be defined as an extortionist under her theory. Offering an example, Clayton acknowledged that her client, NOW, would be guilty of extortion if, during the current protest over the all-male Augusta National Golf Club, NOW members decided to “tear up the greens.”

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