BACK TO BASICS:
           HOW THE 5-MEMBER U.S. SUPREME COURT MAJORITY DISTORTS
                     MODERN CONSTITUTIONAL PRINCIPLES

     For a significant part of this century, the advent of a new
Supreme Court term has been a time of hope for racial and ethnic
minorities and other segments of the population with limited clout
in the political arena.  Ever since an opinion of Chief Justice
Harlan Fiske Stone in 1938, minority interests ignored in the
legislative process were often able to turn to the federal courts
for protection. 
     But times -- and constitutional doctrine -- have changed. 
That sea change is exemplified by last term's 5-4 decision in the
North Carolina congressional districting case.
     In the case of Shaw v. Hunt, Chief Justice William Rehnquist
wrote that the Constitution requires "strict scrutiny" of all
racial classifications, and then applied that principle to
invalidate legislative districts drawn for the purpose of
facilitating the election of African Americans to Congress.  In so
doing, the Chief Justice engaged in a judicial sleight of hand
which contorts into unrecognizability the doctrine he claimed to
invoke.
     The modern doctrine of "strict scrutiny" of legislative
enactments alleged to violate constitutional norms is traceable to
Stone's 1938 opinion in United States v. Carolene Products.  Stone,
it might be appropriately noted, was first appointed to the high
court by a conservative icon, Calvin Coolidge.
     The case involved a federal statute forbidding the interstate
shipment of "filled milk."  It was the beginning of the period when
the Roosevelt Court was abandoning its former economic due process
doctrines.  The opinion by Stone, upholding the constitutionality
of the legislation, has often been cited as ushering in a new era
in constitutional law.  In it, he articulated the modern principle
that strict scrutiny of legislation was appropriate only when laws
infringed on certain kinds of individual rights unlikely to be
protected by the political process.     
     In the famous footnote 4 (called by former Justice Lewis
Powell "the most celebrated footnote in constitutional law"), Stone
began to construct a theory to distinguish types of legislative
enactments which required strict judicial review from those which
were entitled to deference from unelected judges.   
     In setting aside the lower court's ruling that the filled-milk
statute was unconstitutional, the Chief Justice explained that 
such economic legislation need only be rationally related to some
public health objective.  Furthermore, courts should assume, until
it was demonstrated otherwise, that such legislative judgments were
rationally based upon facts within the knowledge and experience of
the legislators.  If the electorate was dissatisfied with the
political judgments of their elected officials, it could respond at
the polls.
     On the other hand, wrote Stone, certain types of legislation
were not entitled to this presumption of constitutionality.  Chief
among the latter were laws which came within a specific prohibition
of the Bill of Rights, since those rights could not be subjected to
revision or dilution by a political majority.  
     Furthermore, Stone's footnote continued, "more searching
judicial inquiry" might be appropriate in regard to statutes which
were "directed at" specific religious, national or racial
minorities.  It was here that Stone appended the often-quoted
phrase that legislation which was prejudicial to "discrete and
insular minorities may be a special condition which tends seriously
to curtail the operation of those political processes ordinarily
relied upon to protect minorities."  Therefore, such enactments
"may call for a more searching judicial inquiry."
     It is most ironic that this Stone dictum has now been twisted
to undermine the rights of the "discrete and insular minorities"
that the "strict scrutiny" doctrine was designed to protect.  That
irony was deftly exposed by the dissenting opinion of Justice John
Paul Stevens in the North Carolina case.  Chiding the Chief
Justice's opinion for applying "strict scrutiny" at the behest of
white voters to a district crafted to provide opportunity for
African-Americans to elect a Representative, Justice Stevens
succinctly observed:
          A majority's attempt to enable the minority to
          participate more effectively in the process of democratic
          government should not be viewed with the same hostility
          that is appropriate for oppressive and exclusionary
          abuses of political power.  

     Justice Stevens was merely reminding his colleagues of the
reasons for Chief Justice Stone's 1938 footnote.  It had nothing
whatsoever to do with invalidating legislation which might benefit
racial minorities.  It had everything to do with making sure that
the political process worked for everyone.  Chief Justice Rehnquist
and his four concurring colleagues have turned constitutional law
(and constitutional history) on its head.
     Even more startling is the fact that less than two weeks after
the North Carolina decision, Justice Scalia, one of the five
members of the Shaw majority, invoked the Carolene Products
principle in dissenting from the decision requiring the Virginia
Military Academy to admit women.  Scalia objected to the holding in
the VMI case that Virginia had to demonstrate an "exceedingly
persuasive justification" - something less than strict scrutiny --
for its gender discrimination.  With a straight face, Scalia
remonstrated with the majority that women who wanted to attend VMI
were clearly not a "discrete and insular minority," a status he had
been quite willing to assign to white voters just two weeks
earlier.

(Printed in the New Jersey Law Journal, Sept. 30, 1996)