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Trademark of court in '99: raft of unanswered issues

Justices end a term marked by cautious rulings that fits tenor of

By Staff writer of The Christian Science Monitor / June 25, 1999



WASHINGTON

The US Supreme Court ended its final term of the 1900s this week in a session marked by unusual ambiguity, leaving unresolved some of the most complex issues in American society.

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While the high court took up a wide range of ambitious and sensitive issues - from gang violence to casino advertising to the rights of the disabled - many of its rulings were narrow or equivocal, leaving behind a legacy of unanswered questions.

To a certain extent, this has been a signature of the high court under Chief Justice William Rehnquist. It has not been prone to producing the kinds of sweeping precedents that were the hallmark of the liberal court of Earl Warren in the 1960s.

Legal analysts say this partly reflects the deliberate, step-by-step style of Mr. Rehnquist himself. But the court, too, is sharply divided along ideological lines, which has produced rulings that look more at the issues at hand than trying to set precedent about those over the horizon.

"This is a court that takes very small steps," says Burt Neuborne of the Brennan Center for Justice at New York University School of Law. "They don't carve out new areas. They have been content operating inside traditional legal structure."

Perhaps not surprising, some of the court's biggest unresolved issues spring from the highest profile cases of the year. For example, the court's final-day blitz of federalism cases has raised serious questions about which federal laws apply to state governments.

Federal regulators, state employees, private businesses in competition with state entities, and the states themselves can only guess about the viability of labor laws, environmental regulations, and even some basic civil rights laws in the wake of the court's rulings that states enjoy immunity from federal suits in both federal and state courts.

How will patent holders enforce their rights against researchers at state universities? Are state entities immune from complying with intellectual property rights? What about trademarks and copyrights?

Other questions, from the court's 88 signed opinions, have arisen as well.

By narrowly defining the scope of the Americans with Disabilities Act, the high court has effectively excluded 140 million Americans from seeking the protections of that civil rights law. But the court did little to end the most difficult hurdle to disabled workers seeking to overcome the prejudice of a boss or prospective employer.

Unresolved Catch-22

The law, as it operates today, sets up a Catch-22 that makes it extremely difficult for the disabled to use the courts to fight the kind of bigotry that Congress was attempting to outlaw.

Under the law, a disabled person must prove two things: that he or she is disabled enough to qualify for protection under the ADA, and that he or she are not disabled enough to perform the work.

The law sets up a buffer that helps shield companies - even companies that intentionally discriminate - from being exposed in court, says John Gresham, of New York Lawyers for the Public Interest.

If disabled job candidates are unable to prove they are disabled enough under the ADA, they never get a chance to tell a judge or jury about their treatment by the company or about how qualified and able they are to actually perform the work, Mr. Gresham says.

"The Catch-22 we hoped [the Supreme Court] would take away is, 'You are too disabled for me to hire you, but you are not disabled enough to challenge us,' " he says.

In the voting-rights area, the high court agreed to hear arguments in two cases this year. One involved the much-litigated congressional district in North Carolina, where white voters claim the state relied excessively on racial gerrymandering to create a district more likely to elect an African-American to Congress.

How to draw new voting districts is an issue of great importance to nearly every state, county, and municipality in the nation because following the 2000 census, congressional districts will be reapportioned and new voting districts will be set.

The current state of the law under existing Supreme Court precedents is a mess, experts say. But the court declined the opportunity to clear things up. The justices sent the case back to the federal court in North Carolina for a trial without offering any guidance on the issue.

In a second case involving newly drawn voting districts for a school board in Louisiana, the court failed to reach any decision and did not explain why.

Puzzle of redistricting

Voting-rights experts say there still may be time for the high court to answer the big, lingering questions about redistricting next term. "I think the court is realizing that the system that they have constructed makes it very hard for the states to do redistricting," says Pam Carlin, a law professor at Stanford Law School. "They have created for the [lower] courts an open season on the whole idea of the political system doing the redistricting at all."

Legal analysts and longtime court watchers say that such unresolved questions are, in part, a result of the incremental style of the high court under Rehnquist.

The court has been sharply divided 5-4 on many of the most contentious issues.

Daniel Elazar, director of the Center for the Study of Federalism at Temple University, says the court's slow pace and reluctance to answer all questions at once is deliberate.

"I would like to see them move faster," he says. "But I can understand why they are doing it in this way. They hope to build something that will last. I don't know if they will succeed but that is clearly what they are trying to do."

One area where the court has been clear, however, is in shifting the balance of power more from the federal government to the states. "To the extent that they strike out in new directions at all it is in the federalism cases," Mr. Neuborne says. "By a narrow 5-4 majority they are slowly rewriting the federalism law."