The Supreme Court in 1998

When the Supreme Court packs up its bags at the end of June each year, court watchers invariably scan the year’s work for evidence of ideological trends. In keeping with the myth that the current Court is “conservative,” the public is generally regaled with a chorus of alarms or expressions of relief, as the decisions warrant. Perhaps it is time to recognize that the balance of power on the “Rehnquist Court” is with the center-left. To be sure, the glory days of judicial activism are over, but that does not make the Court “conservative” in any serious way. The Rehnquist Court is mostly nonideological, with a tendency to make symbolic gestures toward the politically fashionable ideas of the secular elite. Seven appointments by Republican Presidents have left astonishingly little mark.

This term was no exception. About half the decisions were unanimous. Justice Anthony Kennedy was the most frequent swing vote; Chief Justice William Rehnquist, surprisingly, was second. Justice Clarence Thomas departed from his fellow conservatives more often than in the past. Justice Sandra Day O’Connor did so less often. Of the divided cases, the conservatives won a few small victories for property rights and the liberals won a few––more significant––victories for expanded civil rights liability. The most surprising decision of the term was that Ellis Island is not in New York. If I were a Justice, I would hold that the Supreme Court building is not in the District of Columbia.

The most significant cases of the term were the sexual harassment decisions, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton. This is a notoriously confused area of the law, and the Court’s signal contribution this year was to make it marginally less so. In theory, sexual harassment cases involve “statutory construction”––determining the meaning of a law passed by Congress. But since federal statutes say nothing about sexual harassment, and Congress is hardly anxious to take on the thankless task of telling us what it means, the courts have been forced to make up the law, both procedural and substantive, out of whole cloth.

The cases posed the question: When can employers be sued for acts of sexual harassment where the employer was not aware of the conduct and the worker suffered no adverse employment consequence? In 7-2 opinions, the Court held that employers are liable for the offensive conduct of their supervisory employees, but may raise an affirmative defense if they took “reasonable care” to prevent sexual harassment and the worker failed to take advantage of “any preventive or corrective opportunities provided by the employer.”

This expansion of liability will almost certainly generate more lawsuits, since the promise of money damages creates an incentive for workers to eschew informal resolutions of workplace problems. Some employer groups have nonetheless praised the decision on the ground that it brings greater clarity to the law. That may be true, but the decisions still leave important questions unanswered. For example, the Court has provided little guidance about what an employer must do to establish “reasonable care.” Indeed, the Court provided no guidance at all, except to hint that employers should promulgate an anti-harassment policy, make it known to all employees, and provide a complaint procedure. Prudent investors will buy stock in harassment law consulting firms.

Interestingly, the Court reached a different conclusion for cases of sexual harassment under Title IX of the Civil Rights Act of 1972, which prohibits sex discrimination in federally funded educational programs. In Gebser v. Lago Vista Independent School District, written by Justice O’Connor, the Court held that a public school district cannot be held liable for money damages for sexual harassment of a student by a teacher unless the district had “actual notice of, and [was] deliberately indifferent to,” the misconduct. That is a far more difficult standard for plaintiffs to meet. It is, nonetheless, a sensible decision. The principal statutory remedy for Title IX violations is administrative, with notice to the offending school district and prospective remedies. Some twenty years ago, the Court decided to allow private suits for money damages under Title IX, even though the statute made no mention of them. The Gebser case did not overrule that decision, but it recognized that when Congress chooses to rely primarily on enforcement tools other than private litigation, the Court should hesitate before creating expansive doctrines of liability.

In the employment cases, the Supreme Court seemed oblivious to the consequences of unleashing plaintiffs’ lawyers on the nation’s workplaces to enforce codes of civil behavior. Plaintiffs’ lawyers, advocacy groups, and juries are unlikely to draw fine lines between “hostile” environments and mere boorish (or politically incorrect) behavior. Employers, faced with liability if they do not do “enough,” but no liability if they do “too much,” have every incentive to go beyond the theoretical requirements of the law: to engage in ever more intrusive monitoring of the workplace, to root out sexually themed conversation if it might offend anyone . (Employment lawyers have, for example, suggested that jokes about the President and Ms. Lewinsky might be too risque for the nation’s workplaces.) It is hard to believe that this outbreak of prudishness will improve civility, or ease the entry of women into the workplace on equal terms. It is more likely to breed fear and resentment.

Even apart from the sexual harassment cases, the conservatives on the Court did not have a good year. Their only significant 5-4 victories in noncriminal constitutional cases were in relatively minor property rights disputes. In Phillips v. Washington Legal Foundation, the Court held, unsurprisingly, that interest on client trust accounts belongs to the client and cannot be taken by the state and distributed to worthy causes. It had become common practice for states to use the proceeds of these trusts to pay for low-income legal services, and thereby avoid legislative restrictions on the use of appropriated funds. Now legal services lawyers will have to raise funds the old-fashioned way.

More surprisingly, in Eastern Enterprises v. Commissioner of Social Security, the Court struck down a 1992 federal statute requiring companies that employed coal miners 35-50 years ago to pay into a retirement benefit plan they never agreed to fund. Four Justices (Rehnquist, O’Connor, Thomas, and Antonin Scalia) concluded that this was an unconstitutional “taking” of private property, and Justice Kennedy concluded that the Act violates the Due Process Clause. The decision was not surprising on first principles: money is property, and the property was taken. But in previous cases, only slightly less egregious, the Court had blessed Congress’ ability to impose retroactive obligations on companies for the benefit of retired workers. The case could be of considerable importance if it breathes life into the old idea that retroactive legislation violates the rule of law.

In Clinton v. City of New York, the Line Item Veto Act decision, the Court split along unusual lines, with the surprising troika of Scalia, O’Connor, and Stephen Breyer in dissent. The Act, passed in 1996 as part of the Republican “Contract With America,” authorized the President to “cancel” any specific items of spending or limited tax benefits if he found that this would reduce the budget deficit, not impair any essential governmental function, and not harm the national interest. He was required to report the cancellation to Congress, which then could repass the provision as ordinary legislation under expedited procedures. The majority held that this is a violation of Article I, §7, which permits the President to veto legislation only in its entirety.

The majority opinion is not convincing. As Justice Breyer pointed out, when the President “canceled” certain spending items, “he did not repeal any law nor did he amend any law. He simply followed the law, leaving the statutes, as they are literally written, intact.” The only real constitutional question is whether Congress may delegate to the President the authority under certain circumstances not to spend funds Congress has authorized. For almost two hundred years, until Richard Nixon abused the power, Presidents “impounded” (meaning refused to spend) funds under various circumstances, consistent with the implied will of Congress. Since the 1930s, Congress has had extraordinarily broad power to delegate discretionary authority to the executive branch, so long as it prescribes an “intelligible principle” according to which the executive must act. This can include such broad standards as the “public interest, convenience, or necessity.” It is hard to see how the Line Item Veto Act could be struck down under these precedents.

Fortunately, the damage done is easily remedied. If Congress wishes to reenact the Line Item Veto Act in substance, all it needs to do is to rephrase it and impose more specific standards; the advantage of a formalistic opinion is that it invites a formalistic response. National Endowment for the Arts (NEA) v. Finley was the constitutional case of the term with the greatest potential impact on the tone and quality of our public culture. Responding to public outcry over incidents where the NEA funded art of a homoerotic, sacrilegious, or otherwise offensive nature, Congress passed an amendment requiring the Endowment to “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” The so-called “arts community” reacted with indignation to the notion that, when accepting the public’s dollar, it should comply with the public’s sensibilities. Opponents of the provision went to court and persuaded the Ninth Circuit Court of Appeals that the amendment is unconstitutional on its face.

A  six-Justice majority led by Justice O’Connor upheld the amendment on its face. It did so, however, by interpreting the statutory language as “advisory” and as “aimed at reforming procedures rather than precluding speech.” The Court thus ducked the significant question: What limits, if any, apply to the government’s decision to grant or withhold subsidies for speech or artistic expression?

Justice David Souter, the sole dissenter, would have confronted the issue head-on. According to Souter, the government may discriminate on the basis of viewpoint only when the government itself is speaking or when it is providing funds to private parties to convey the government’s own message. When the government provides broad-based subsidies to speakers to convey their own ideas, the government may make restrictions based on content (for example, it may fund poetry and not rock-and-roll) but may not discriminate on the basis of viewpoint. Since, in his opinion, the considerations of “decency” and “respect” are “quintessentially viewpoint based,” Justice Souter argued that the statute is unconstitutional on its face.

Justice Scalia, joined by Justice Thomas, took the opposite tack. According to Scalia, the First Amendment is “inapplicable” to government decisions about the funding of speech. Consequently, when establishing a program of subsidies for artists, Congress can discriminate on the basis of viewpoint as well as content.

In my opinion, Justice Souter’s legal categories are correct, but he was wrong in concluding that “decency” and “respect for diverse opinions” are viewpoint-based restrictions. Justice Scalia’s distinction between funding and regulation is inapplicable in an age when government most often asserts its power through selective funding and through control over public land and institutions. Justice Scalia joined the Court’s decision three years ago in Rosenberger v. University of Virginia, holding it unconstitutional for a public university to bar student publications from receiving money on account of their religious viewpoint. It is inconsistent to say, now, that the First Amendment does not apply to exclusions from government funding.

To make these legal distinctions work, however, the idea of “viewpoint discrimination” has to be limited to cases in which the government seeks to exclude participants on the basis of the philosophy, worldview, or opinions they express rather than the manner in which they express them. The NEA Act satisfies this, more sensible, definition of viewpoint neutrality. It is impossible to imagine a “viewpoint” that would be excluded by the standards of “decency” and “respect for diverse opinions.” Even the viewpoint that one should be indecent or disrespectful can be expressed decently and with respect for the sensibilities of others.

Indeed, if Justice Souter is correct that “decency” is “quintessentially viewpoint based,” it is hard to see why “artistic excellence” is any less so. Doesn’t this favor “mainstream” artistic tastes (at least in the “arts community”) over other artistic perspectives? Is it conceivable that the NEA would fund art that portrays homosexuality as immoral or a woman’s proper place as being in the home? What about artists who wish to rebel against the prevailing standards of artistic excellence in the most powerful way they can: by producing art that is inartistic or mediocre? Excluding them is no less (and no more) “viewpoint based” than excluding those who wish to express their contempt for “mainstream mores,” or for their fellow citizens, by producing art that is indecent or disrespectful of others. If Justice Souter’s analysis is correct, the proper result is not to fund indecent or disrespectful artists, but to strike down the entire statute.

Unfortunately, not a single Justice embraced this analysis. Souter fell for the idea that the “arts community” should tap public funds but have no public responsibility; Scalia and Thomas would abandon constitutional protections against the power of the purse; the other six Justices were content with a muddle. This decision, along with the workplace sexual harassment cases, suggests a theme: the Court is unwilling to stand up for common sense when fashionable political opinion runs strongly the other way. The Rehnquist Court rarely does much harm, but neither does it show much courage.

Michael W. McConnell is Presidential Professor in the University of Utah College of Law.