Social work and the supreme court: a clash of values; a time for action.

Lens, Vicki

Are these the words of a lone judge striking out against homosexuals and gays from a wayward lower court in a less progressive part of the country? Of are they the sentiments of a judge in the most exalted judicial position--the United States Supreme Court? If you chose the latter you would be right. These words were written by Justice Scalia in a dissenting opinion, joined by Justices Thomas and Rhenquist, in Lawrence v. Texas (p. 2496-2497), a 2003 Supreme Court case invalidating a Texas statute that criminalized homosexual conduct as a violation of the Due Process Clause of the Constitution.

These words, and many more like them, ate emblematic of what is wrong with the Supreme Court today. Although law, not ideology, is assumed to guide the Court's decisions, it is easy to spot the animus toward gay people that underlies this dissent. Although Justices Rehnquist, Thomas, and Scalia may have been in the minority, often they are not. The Court has enormous influence over social policy, and its decisions are increasingly at odds with social work values. Social workers and their professional organizations thus need to be fully informed and engaged in the doings of the Supreme Court.

Social workers are used to dealing in the traditional political arena, lobbying for bills before Congress or before regulatory agencies of the executive branch. They ate sometimes less comfortable with the Supreme Court, a legal institution that speaks in a different language and follows different rules. The power embodied in these nine nonelected justices who serve for life, and who have the last say on the Constitution, can seem unchallengeable. Whereas the social work literature includes numerous articles explaining Supreme Court decisions and their implications for social work practice (See, for example. Alexander, 1993; Alexander & Alexander, 1995; Kopels & Rycraft, 1993; Lens, 2000, 2001), less attention has been paid to the Court as a political institution and a target for political activism. This commentary attempts to fill that gap.

Legal scholars have taken note of the Court's political and ideological shift since President Reagan began staffing it with ideological conservatives (Chemerinsky, 1994; Gottlieb, 2000; Griffin, 2000; Kramer, 2000; Schwartz, 2001). In his book about the Rehnquist Court, Morality Imposed, Stephen Gottlieb (2000) concluded that the conservative block on the Court (Justices Rehnquist, Scalia, and Thomas, who are frequently joined by Justices Kennedy and O'Connor), has substituted its own moral judgments for the law, instituting a "far more major revolution in judicial thought in America than is commonly appreciated" (p. X1). In the areas of reproductive rights and civil rights this has meant less regard for personal autonomy and the impact of discriminatory behavior.

Many of the cases decided by the Court are contrary to our Code of Ethics (NASW, 2000), which requires a commitment to social justice, "on behalf of vulnerable and oppressed individuals and groups of people ... focused primarily on issues of poverty, unemployment, discrimination, and other forms of social injustice" (p. 5). In two key cases--Richmond v. Croson (1989) and Adarand Constructors, Inc. v. Pena (1995)--the Court made it more difficult for state and local governments to implement affirmative action programs by subjecting such programs to strict scrutiny, the highest standard of review under the Constitution and a difficult standard to meet. Prior to these decisions, affirmative action programs could be used to address general societal discrimination. Now states must show a compelling interest, such as a need to remedy specific past acts of discrimination. And recently, in Alexander v. Sandoval (2001) the Court drastically limited the effectiveness of civil rights laws by allowing civil rights actions by private individuals against recipients of federal funds (such as state and local governments) only for intentional discrimination and not for actions that have a discriminatory impact. Because intentional discrimination and be more difficult to prove than discriminatory impact, especially when the discriminator is a government entity, this decision severely hobbles the enforcement of civil rights laws by private individuals.

Women also have not fared well under the Rehnquist Court. The right to an abortion has been diluted by a new standard that permits states to impose restrictions on abortions that would not have been permitted under Roe v. Wade (1973) (Planned Parenthood v. Casey, 1992). Under Roe, the decision to have an abortion was between a woman and her doctor. Now states can impose a host of restrictions, including 24-hour waiting periods and burdensome administrative regulations not required of other medical providers, all strategically designed to limit the availability and increase the costs of an abortion. A new remedy for violence against women--the ability to sue attackers in federal court--was also invalidated by the Court. (United States v. Morrison, 2000). And in Davis v. Monroe County Board of Education (1999), the Court made it more difficult for students who have been harassed by their peers to hold schools liable.

These and other cases have serious implications for efforts to secure social justice. In the past, social workers and others enlisted the Court in their causes, with test cases designed to establish important new rights for traditionally disenfranchised groups. Social science evidence often played a crucial role. The classic example is Brown v. Board of Education (1954), where the psychological effects of segregation were cited as a reason for ending it (Monahan & Walker, 1994). Various advocacy groups, including the American Civil Liberties Union and the National Organization for Women (NOW), and professional groups, including the American Psychological Association, and to a lesser extent the National Association of Social Workers, adopted a strategy of filing amicus curia (friend of the court) briefs in important cases (Caldeira & Wright, 1988). Such briefs apprise the Court "of the array of social forces at play in litigation" (Caldeira & Wright, p. 1110) and provide useful information and research. Caldeira and Wright demonstrated that amicus curiae participants do indeed influence the Court, especially in deciding which cases to accept for review.

Such tactics, although useful in the past and still important today, may be less effective before a Court ideologically opposed to certain interest groups' views. One strategy is to avoid bringing cases before the Supreme Court that are likely to result in "bad law." Instead, as has been the trend over the last decade or more, advocates can turn to state courts and state constitutions, which often provide more protection (Garibaldi, 1998; Van Cleave, 1998). For example, although there is no federal constitutional right to welfare, the New York State Constitutinn requires the state to affirmatively aid the needy. And in another example, the Vermont Supreme Court found that state's constitution grants more legal protection to same sex couples than does the United States Constitution (Baker v. State, 1999).

But more is required than shifting focus to the state courts or influencing the Court through amicus curia participation and other tactics. The Supreme Court, once viewed as an agent of social change, is now more properly viewed as a target for change. Political and social action directed at diluting the Court's power and the impact of its decisions is required.

The Supreme Court's power depends neither on the "purse nor the sword" (Baker v. Carr, p. 267, 1962, Frankfurter, J., dissenting) but "on its reputation for impartiality and nonpartisanship" (Mistretta v. United States, p. 405-406, 1989, Blackmun, J.). Most of the time the public complies with its decisions voluntarily, affording it a respect and reverence not typically granted other branches of government (Segal & Spaeth, 1993). It is often seen as the final arbiter of our conflicts, because it is viewed as the fairest arbitrator of them.

But this need not be the case, especially when a Court, such as the Rehnquist Court, is ideologically outside the mainstream. In such cases, several strategies can be used to minimize or alter the negative consequences of Court decisions. The tactics depend on the type of decision. Court decisions are based on either statutory interpretation of a law passed by Congress or on the Constitution. Decisions based on statutory interpretation can be overturned by legislative amendments to the law. And although the Court has the final say on the Constitution, some wiggle room exists. Some decisions are prescriptions for what is permissible under the Constitution, not statements of what must be done.

Hence Supreme Court decisions should not be treated as the final say, as they often are. When a decision is based on an interpretation of federal law, pressure must be applied on Congress to amend or modify the law. This requires traditional social change strategies such as mass action protests (that is, letter writing, petitions, and other public displays of discontent) and legislative lobbying (Bybee, 2000, McDonnell, 1997). This is what occurred in the early 1990s when the Supreme Court issued a string of decisions narrowing the scope of civil rights law. After public pressure was applied by civil rights organizations, Congress responded by amending the civil rights law to provide even more protection (Mikvah & Bleich, 1991). Social workers, in con)unction with other groups, should apply similar strategies today.

Decisions based on the Constitution require a different approach because they are not amenable to legislative override. Here, attention can be focused on those responsible for implementing the decision. For example, in Atwater v. City of Lago Vista (2001) the Supreme Court held that citizens could be taken into custody for even minor traffic infractions, a ruling with implications for racial profiling. Community pressure could be applied to local police departments not to institute such policies even though it is constitutionally permissible. Similarly, although the Rehnquist Court has held that placing restrictions on abortions are constitutionally appropriate, advocates can lobby state legislatures not to impose them. Social workers can help by educating the public on the social welfare implications of decisions, mobilizing opposition, and joining in lobbying activities.

To be sure, certain Supreme Court decisions are less amenable to such tactics because they are framed as an outright prohibitions of certain activities. The Adarand and Richmond decisions on affirmative action programs cited above are examples. However, Supreme Court holdings often must be refined and interpreted by the lower courts. In certain jurisdictions public opposition, including that of professional organizations and advocacy groups, may influence courts to adapt a more liberal interpretation. Compliance with controversial and harmful Supreme Court decisions may also be slowed, similar to the way segregationist groups slowed integration after Brown and antiabortion groups diluted the effects of Roe.

Another alternative is the admittedly controversial response of civil disobedience. This has been used in the past, often by political conservatives. An example is the refusal of many public schools teachers in the South to abide by a 1963 Supreme Court decision prohibiting the reading of the Bible to students (Segal & Spaeth, 1993). However, an inherent obligation to obey the law exists, because it promotes social order and stability (Reamer, 1995). An exception occurs when serious harm may result. One example is outlawing of abortion by the Supreme Court.

Finally, the selection of future justices is a key area for political action. Senate confirmation proceedings have become increasingly politicized, and challenging the ideology of prospective nominees is both acceptable and necessary (Schumer, 2001). Many of the most controversial Supreme Court decisions were decided by a 5 to 4 vote, making a reversal, or at least a watering down of the decision, more likely with the appointment of a less conservative justice. Interest groups such as NOW and the NAACP are already geared up to rebalance the Court. Social workers, through their professional organizations, should also be visibly and actively involved.

What all these strategies have in common is that they keep the Supreme Court in the political spotlight, where it should be. When confronted with a Court bent on diluting social justice rather than enhancing it, social workers must respond with the traditional political tools used in other venues. Only in this way will the profession's values be upheld.

References

Adarand Constructors, Inc. v. Pena, 515 U. S. 200 (1995).

Alexander v. Sandoval, 121 S.Ct. 1511 (2001).

Alexander, R. (1993). The legal liability of social workers after DeShaney. Social Work, 38, 64-68.

Alexander, R., & Alexander, C. (1995). The impact of Suter v. Artist on foster care policy. Social Work, 40, 543-548.

Atwater v. City of Lago Vista, 121 S.Ct. 1536 2001.

Baker v. state, 744 Ad2d 864 (VT, 1999).

Baker v. Carr, 369 U.S. 186 (1962).

Brown v. Board of Education, 348 U.S. 886 (1954).

Bybee, K. J. (2000). The political significance of legal ambiguity: The case of affirmative action. Law and Society Review, 34, 263-287.

Caldeira, G., & Wright, J. (1988). Organized interests and agenda setting in the U.S. Supreme Court. American Political Science Review, 82, 1109-127.

Chemerinsky, E. (1994). Courts and Constitutions: Rehabilitating federalism. Michigan Law Review, 92, 1333-1346.

Davis v. Monroe County Board of Education, 119 S.Ct. 1661 (1999).

Garibaldi, M. (1998).The Rehnquist Court and the state constitutional law. Tulsa Law Journal, 34, 67-83.

Gottlieb, S. (2000). Morality imposed: The Rehnquist Court and liberty in America. New York: New York University Press.

Griffin, S. M. (2000). Has the hour of democracy come round at last? The new critique of judicial review. Constitutional Commentary, 17, 683-701.

Kopels, S., & Rycraft, J. (1993). The U. S. Supreme Court rules on reasonable efforts: A blow to child advocacy. Child Welfare, 72, 397-406.

Kramer, L. (2000). Putting the politics into the political safeguards of federalism. Columbia Law Review, 100, 215-293.

Lawrence v. Texas, 123 S.Ct. 2472 (2003).

Lens, V. (2001). The Supreme Court, federalism, and social policy: The new judicial activism. Social Service Review, 75, 318-336.

Lens, V. (2000). Protecting the confidentiality of the therapeutic relationship: Jaffee v. Redmond. Social Work, 45, 273-276.

McDonnell, B. (1997). Dynamic statutory interpretations and sluggish social movements. California Law Review, 85, 919-954.

Mikva, A. J., & Bleich, I. (1991). Civil rights legislation in the 1990s: When Congress overrules the Court. California Law Review, 79, 729-750.

Mistretta v. United States, 488 U.S. 98 (1989).

Monahan, J., & Walker, L. (1994). Social Science in Law. Westbury, NY: The Foundation Press.

National Association of Social Workers (2000). Code of ethics of the National Association of Social Workers. Washington, DC: Author.

Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992).

Reamer, F. (1995). Social work values and ethics. New York: Columbia University Press.

Richmond v Croson, 488 U.S. 469 (1989).

Roe v. Wade, 410 U.S. 959 (1973)

Schumer, C. (2001, June 26). Judging by ideology. The New York Times, p. A19.

Schwartz, H. (2001). The Supreme Court's federalism: Fig leaf for conservatives. The Annals of the American Academy of Political and Social Science, 547, 119-139.

Segal, J. A., & Spaeth, H. J. (1993). The Supreme Court and the attitudinal model. Cambridge, England: Cambridge University Press.

United States v. Morrison, 120 S.Ct. 1740 (2000).

Van Cleave, R. (1998). State constitutional interpretation and methodology. New Mexico Law Review, 28, 199-225.

Vicki Lens, JD, PhD, is assistant professor, Columbia University School of Social Work, 622 West 113th Street, New York, NY 10025; e-mail: v12012@columbia.edu.

Original manuscript received July 16, 2001

Final revision received October 22, 2001

Accepted January 28, 2002