The Clinton administration and the Supreme Court haven't exactly seen eye-to-eye in a number of recent high-profile cases. The Paula Jones suit was allowed to proceed. And the Communications Decency Act was voided.
The losses don't end there. In civil rights litigation, Clinton's Justice Department has the least successful record of any recent administration, says Clint Bolick, director of litigation at the Institute for Justice. Federal judges appointed during the Reagan and Bush administrations are more skeptical of the left-liberal view of civil rights than their immediate predecessors; as a consequence, sentiments once expressed in dissents are now finding their way into majority opinions.
From racial gerrymandering to preferences in government contracting to school desegregation, the government's arguments have been consistently rejected–both in the Supreme Court and in lower federal courts. This trend is likely to continue, says Bolick, as long as the Clinton administration persists in "defending the indefensible."
The next case to watch: the Piscataway, New Jersey, reverse-bias suit, which the Court will hear next term. In 1989 the local school board eliminated a teaching position at a high school by firing Sharon Taxman, a white teacher the board admits had the exact amount of seniority as the black teacher who was allowed to keep her job. And even though there was no record of past discrimination in Piscataway's public schools, the board said race was a factor in keeping the black teacher rather than deciding by, say, a coin flip. The Court of Appeals for the 3rd Circuit cried foul, ruling that Taxman's firing violates Title VII of the Civil Rights Act of 1964, which states that race can only be used to remedy past discrimination. The Bush administration supported Taxman's complaint, but early in Bill Clinton's first term the Justice Department took the almost unprecedented action of switching sides and backing the school board.