Is The Court Turning Right?

By Richard Lacayo

Ever since it outlawed public school segregation in 1954, the U.S. Supreme Court has been on the cutting edge of civil rights advances. Now, however, the Justices may be on the verge of a historic rollback. In an unusual move, the court last week considered whether to overturn its 1976 ruling in Runyon v. McCrary, a key civil rights decision. That possibility prompted a flood of briefs from Senators, Congressmen, state attorneys general and civil rights groups urging the court not to overrule Runyon.

The intense public interest went beyond the issue of racial discrimination. What seemed to hang in the balance was the larger question of whether a conservative court was emerging -- one that not only would shape the future but also might reopen other past cases, such as the 1973 Roe v. Wade decision, which granted women the right to have an abortion.

The original Runyon case involved two black children's attempts to enroll in racially segregated private schools in Virginia. In ruling for the plaintiffs, the court based its decision on a law passed by Congress in 1866 to ensure the rights of emancipated slaves by granting them the same freedom to "make and enforce contracts" that white citizens had. That law, as interpreted by the court, allowed racial minorities to bring discrimination suits against private parties and, most important, to collect monetary damages.

Last week's rehearing was prompted by an employment-discrimination suit brought by a black woman, Brenda Patterson, against a North Carolina credit union -- an action relying on the Runyon precedent. Instead of deciding the Patterson suit on its own merits, the court voted last April to schedule a rehearing of Runyon itself. If the court reverses its earlier stand, it could deprive blacks of what has become a significant weapon against bias by employers or private schools. It will also undo a decision that has provided a basis for subsequent federal law and more than 100 lower-court rulings.

At last week's oral arguments, Julius Chambers, director-counsel of the NAACP Legal Defense and Educational Fund, argued against overturning Runyon by stressing that it had become a "significant part of the web of congressional and judicial efforts to rid the country of public and private discrimination." Surprisingly, when Manhattan attorney Roger Kaplan argued to overturn the ruling, conservative Justice Antonin Scalia, who had voted to rehear the case, asked from the bench, "Let's concede that ((Runyon)) is wrong. So what? What's special about this case to require us to go back and change our decision?" When Kaplan answered that the 1976 ruling "intruded on the operation of Congress," Scalia cut him off. "If that's all you have, I'm afraid it's nothing."

The final ruling on Runyon, due later this term, might signal the court's attitude toward other civil rights cases this term. In one, Richmond v. J.A. Croson Co., the Justices will pronounce on an affirmative-action "set aside" plan drawn up by the city of Richmond that requires city contractors to subcontract 30% of the dollar value of their contracts to minority firms. One of the main issues is whether Richmond can impose such a plan if there is no evidence that the city itself has ever discriminated. Invalidating the plan could jeopardize similar set-aside arrangements around the country. In another case, Martin v. Wilks, the Justices will consider whether white fire fighters can challenge an affirmative-action scheme reached through an agreement between blacks and the city of Birmingham that was approved without the whites taking part. Ordinarily, third parties are barred from going to court to object to "consent decrees" once they have been reached.

At the outset of the new court term, all eyes are focused on the pivotal figure of Justice Anthony Kennedy. Nominated by President Reagan last year, Kennedy, 52, could be the man who finally tips the scales to the right. "Can Justice Kennedy be the answer to conservatives' prayers?" asks Patrick McGuigan of the Free Congress Research and Education Foundation. "All the early data are good." Indeed, in 13 cases last term in which the court split 5 to 4, Kennedy voted with a conservative majority eight times, including the stunning decision to reconsider Runyon. Says University of Virginia government professor David O'Brien, a court specialist: "I sense clearly that the court will make a strong turn to the right in the area of social discrimination." If so, the ideological legacy of Ronald Reagan may last well into the 21st century.

With reporting by Steven Holmes/Washington