Just as those "lazy days" of summer descended on the capital city -- with both temperatures and humidity percentages consistently in the 90s -- the nation's high court undertook what appeared to be an unprecedented flurry of activity. In June in Washington, D.C., you couldn't wave a fan without knocking into a Supreme Court decision.
But sheer numbers weren't what attracted all the attention -- the court, when in session, is always busy. What created a summer storm of heated controversy was the nature of the decisions -- and the apparent trend that observers, depending on their loyalties, either cheered or lamented. The decision upon which most of the nation's attention was riveted was, of course, the Missouri case regarding abortion rights; that landmark case and the controversy that swirls around it will be the subject of the next issue of Sojourners. But several other decisions in the summer of '89 also came down in the eye of a storm.
In the first week of June, the court took up the case of an Alaskan salmon cannery, in which the stratification of work has whites holding virtually all the professional positions, while native Alaskans and Filipinos perform the unskilled labor. Overturning a lower court ruling, which placed on the cannery the burden of proof that its hiring practices do not violate the 1964 Civil Rights Act banning discrimination in employment, the Supreme Court ruled against the minority workers.
A week later the court ruled in favor of white male fire fighters in Birmingham, Alabama, who challenged court-approved affirmative action plans on the basis of reverse discrimination. The court said that white men not involved in the development of affirmative action hiring and promotion programs may sue to challenge their validity -- even years after they have been adopted.
On the same day, in a decision that received far less attention, the court ruled that three women employees of AT&T were too late in their claim that they were victims of a dual-seniority system that allowed women to be fired or demoted before men. The court said they should have sued in 1979 when the seniority system was adopted -- not when they were demoted.
Said Mary Frances Berry, a former member of the U.S. Civil Rights Commission, of that day in court, "When the rules worked in favor of white men, as in the AT&T case, the court said the affected women didn't come in time. When the rules worked against white men, the court said white men can come in whenever they choose."
Three days later the court considered the case of Brenda Patterson, a black employee at a North Carolina credit union who claimed she had been harassed, assigned menial work, denied promotions, and laid off because of her race. The court dismissed Patterson's claim on the basis that the Reconstruction-era Civil Rights Act of 1866, to which she appealed, did not cover racial harassment in private employment. In a similar case the following week, the court ruled that the Act cannot be used to file damage suits against state or local governments for acts of racial discrimination.
These civil rights decisions, along with a January 1989 ruling that declared unconstitutional a Richmond, Virginia ordinance setting aside 30 percent of public works contracts for minority contractors, reflect an alarming trend. Some observers are calling the summer of 1989 the end of the "Second Reconstruction era," which began with the desegregation and civil rights legislation of the '50s and '60s.
Almost all of the Supreme Court cases were decided in a 5-to-4 vote, signaling a shift to the right as the Reagan appointees make their mark. Women and minorities can expect to find rapidly closing doors at the high court in their efforts to challenge harassment and discrimination.
INMATES ON DEATH ROW can expect worse, the summer of 1989 showed us. On June 23 the court ruled -- 5 to 4 -- that indigent inmates on death row do not have a constitutional right to a lawyer to represent them in a second round of state court appeals. Such appeals are critical, since as many as two-thirds of all appeals result in death sentences being reversed.
Three days later the court decided, in 5-to-4 votes, that it is entirely constitutional -- and consistent with "evolving standards of decency that mark the progress of maturing society" -- to put to death 16-year-olds and mentally retarded citizens on death row. The latter case involved Johnny Paul Penry, a man with an IQ of 54 and the mental age of a 6-and-a-half-year-old.
And then came the flag flap. In yet another 5-to-4 vote -- but one that cut across predictable ideological lines -- the justices voted to protect protesters who burn the American flag in political demonstrations, thus nullifying flag desecration laws in 48 states. In his emotional dissent, Chief Justice William Rehnquist included the full text of "The Star Spangled Banner."
President George Bush, who had campaigned in a flag factory and pummeled Michael Dukakis with the Pledge of Allegiance, couldn't keep quiet on this one. Calling flag burning "dead wrong," he hastily called for legislation or a constitutional amendment prohibiting desecration of the flag.
Democrats in the House and Senate, with the presidential campaign still fresh in their memories, immediately launched efforts to claim the high ground of love-for-flag and circumvent the court's decision. Only the humidity was heavier in the air than the patriotic rhetoric that swirled around Washington in late June. People came out of the bipartisan woodwork to rally 'round the flag, to protect and uphold its dignity.
But who will protect this nation's women and minorities from discrimination? And who will uphold the dignity of mentally retarded citizens on death row? Who will rally around frightened teenagers sentenced to death and their families? And who will salute the citizens who struggle, against the odds, to make this a more just and compassionate nation, with true liberty and justice for all?
If the flag is our acclaimed standard of decency, then let us make this a decent nation for every one of us. Perhaps we would all feel free to wave the flag, if we knew that this nation would never waive the rights of any of its citizens.
Joyce Hollyday was associate editor of Sojourners when this article appeared.
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