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High Court in Awkward Spot Over Equal Protection Ruling

By DAVID G. SAVAGE, HENRY WEINSTEIN, Times Staff Writers

     WASHINGTON--Over the last 15 years, the Supreme Court under Chief Justice William H. Rehnquist has made it nearly impossible to win constitutional claims of unequal treatment.
     To succeed, the court has ruled, claimants must prove that government officials were biased and engaged in blatant discrimination. This high threshold is rarely crossed.
     That is why many legal experts were taken aback this week when the high court relied on the equal protection clause to stop the manual recount of presidential ballots in Florida.
     No one had alleged that the judges who would supervise the recounts were motivated by discriminatory bias.
     Nonetheless, the claim proved to be a winner for lawyers representing Texas Gov. George W. Bush.
     "We find a violation of the equal protection clause," the conservative majority said in Bush vs. Gore, because the recount process lacked the "procedural safeguards" to assure that counties would not treat unread ballots differently.
     Until this week the court had consistently turned away equal protection claims, even when confronted with strong allegations of racial bias.
     When defense lawyers challenged Georgia's death-penalty system as racially biased, they cited studies showing that murders involving whites were 11 times more likely to result in a death sentence than murders of blacks.
     But on a 5-4 vote, the court in 1987 rejected that claim, ruling that the statistics did not prove that the Georgia officials were biased.

     Rehnquist Rejects Drug Case Study
     Four years ago, public defenders in Los Angeles alleged a pattern of bias in federal drug prosecutions. They said that during one year every person charged with a federal crack cocaine offense was black. A federal judge then ordered a study of drug cases in the U.S. attorney's office and cleared the way for the defense lawyers to question prosecutors.
     But Rehnquist, speaking for the high court, overturned that order and quashed the study based on what he called "ordinary equal protection standards. . . . The claimant must demonstrate that the federal prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose."
     Since the public defenders had no proof in advance that U.S. attorneys in Los Angeles were biased, they were not entitled to the study, he said.
     The gap between the court's usual approach and this week's ruling has caused both debate and some despair among legal scholars.
     University of Chicago law professor Cass Sunstein, who considers himself an admirer of the Rehnquist court, said that his faith in the justices has been shaken.
     "The good thing you can say about this case is that it settled things in the least messy way. But as a matter of law it is a real embarrassment. It's the worst moment for the court, at least since Roe," Sunstein said, referring to the 1973 ruling in Roe vs. Wade that upheld the right to abortion.
     "The equal protection holding is a bolt out of the blue. There is no precedent for it and there's no support in history for this type of ruling," Sunstein said. "And for it to come now in a 5-4 decision, it's just very hard to explain."
     University of Virginia law professor A. E. Dick Howard also said that he finds the ruling difficult to explain on legal grounds.
     "This is a remarkable use of the equal protection clause. It is not consistent with anything they have done in the past 25 years," Howard said. "No one even claimed there was intentional discrimination here."

     Clause Dates Back to the Civil War
     The guarantee of equal protection of the laws was added to the Constitution after the Civil War to protect black Americans from discrimination in the South.
     During the late 19th century, the Supreme Court nearly erased this clause from the Constitution with the "separate but equal" doctrine that permitted rigidly racist practices.
     The court revived the equal protection guarantee in 1954 with the Brown vs. Board of Education ruling that struck down official segregation.
     The closest precedents for Tuesday's ruling came in reapportionment cases of the early 1960s. Then, the court confronted a situation in which rural counties had far more power in many state legislatures than their populations would justify. For example, a rural county with 50,000 residents might have the same one vote in the state Senate as a city of 500,000.
     Citing the right to vote and the equal protection clause, the court of Chief Justice Earl Warren said that voters were entitled to roughly equal representation. One such ruling, Reynolds vs. Sims in 1964, was cited in Tuesday's opinion.
     UC Berkeley law professor John Yoo applauded the court's Bush vs. Gore ruling and said that the equal protection analysis "followed the logic of one person, one vote. This case took that logic and extended it to what the states do after the vote," said Yoo, a former law clerk for Justice Clarence Thomas.
     In their dissenting opinions, two of the liberal justices--David H. Souter and Stephen G. Breyer--said they agreed that the Florida recount required "uniform standards" for deciding what is a legal ballot. It would not do to have "dimpled" ballots counted in one place but not in another, they said.
     But the two justices acknowledged that an even wider disparity results from different voting systems. The older punch-card tabulators used in South Florida are far more likely to miss legal votes than the optical scanners used elsewhere in the state.
     These "voters already arrive at the polls with an unequal chance that their votes will be counted," Breyer said in his dissent.
     Until now, this difference in vote counting has not been seen as an equal protection violation. And academics who closely study the court and voting rights said they were uncertain whether Tuesday's decision says something important about equal protection or merely this year's election.
     The conservative majority said that its constitutional ruling was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."
     J. Clark Kelso, a professor at the McGeorge Law School in Sacramento, said that the ruling may have little effect on the law, despite its enormous effect this week.
     The equal protection analysis was "extremely underdeveloped" in the opinion, said Kelso, who clerked for Justice Anthony M. Kennedy when he was a federal judge. "Scholars are scratching their heads [because] the court was trying to say as little as it could to justify the opinion. It probably won't have much effect on the law other than in a case involving a manual recount of punch-card ballots in a presidential election."
     But because the unsigned majority opinion speaks of the "fundamental rights of each voter," some say it might prove significant in the future.
     It "certainly opens up a new avenue of litigation about voting--or at least it potentially does," said Harvard University law professor Randall Kennedy, who clerked for the late Justice Thurgood Marshall. "That is very ironic in that the razor-thin-margin majority is mainly constituted by people who in other areas have shown a quite remarkable indifference to equal protection claims."
     In the past, claims of unequal treatment have been routinely rejected by the Rehnquist court.
     For example, the justices have refused to hear constitutional challenges to federal drug laws, even though the punishment for those caught with crack cocaine is 100 times greater than for those caught with the same amount of powder cocaine.
     In 1992, a new homeowner in Los Angeles brought an equal protection challenge to California's system of unequal property taxes.
     Thanks to Proposition 13, which froze property values for existing homeowners, new buyers often found themselves paying taxes five or 10 times higher than their neighbors, even when their homes were identical. But the high court rejected the claim and said that states "have a large leeway" in setting tax rules.

     Gay Bias Upheld in Boy Scout Case
     The Rehnquist court also has turned away equal protection claims from gays and lesbians who have been discharged from the military because of their sexual orientation.
     Earlier this year, the court intervened when state judges in New Jersey ruled that the Boy Scouts had violated state antidiscrimination law by kicking out a Scout leader who said he was gay. The court, on a 5-4 vote, said that the Scouts have a 1st Amendment right to exclude gays. The majority was the same as in Tuesday's ruling in Bush vs. Gore, with Rehnquist joined by Justices Sandra Day O'Connor, Antonin Scalia, Kennedy and Thomas.
     Before this year, Scalia has insisted that the court not use the equal protection clause to second-guess the states.
     In 1996, the court struck down a Colorado anti-gay rights law on a 6-3 vote. In a thunderous dissent, Scalia accused his colleagues of an "act not of judicial judgment but of political will." The Constitution's equal protection clause does not warrant "the holding that homosexuality cannot be singled out for disfavorable treatment," Scalia said in a dissent joined by Rehnquist and Thomas.
     There is one major exception to the trend of not invoking the equal protection clause. In a series of cases brought by whites challenging affirmative action, the Rehnquist court has intervened to strike down state laws that benefit minorities.
     When North Carolina lawmakers redrew their congressional districts in the early 1990s, they created two of 12 with black majorities. They noted that while nearly 1 in 4 North Carolinians is black, the state had not sent an African American to Congress in the 20th century.
     But on a 5-4 vote, the court struck down these districts as "racial gerrymandering" that violated the equal protection clause of the Constitution.
     The court also struck down federal contracting laws that set aside some work for minority-owned firms. The majority consisted of Rehnquist, O'Connor, Scalia, Kennedy and Thomas.
     Law professor Richard Lazarus, who runs Georgetown University's Supreme Court Institute, called Tuesday's Bush vs. Gore ruling "unsettling." The majority's legal position "seemed antithetical to most of their jurisprudence in the equal protection area," he said.
     Added USC law professor Erwin Chemerinsky: "The Rehnquist court almost never uses equal protection jurisprudence except in striking down affirmative action programs. I can't think of a single instance where Scalia or Thomas has found discrimination against a racial minority or women or the aged or the disabled to be unconstitutional."

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