1/17/01 10:15 a.m.
Surrealism at the Supreme Court
Court hears English-only case.

By Jim Boulet Jr., executive director, English First

icture an immigrant to the United States standing on the steps of the Supreme Court giving interviews entirely in Spanish on the evils of official English laws. A sketch from Saturday Night Live? No. The actual scene in front of the Supreme Court on January 16th after oral varguments ended in the case of Alexander v. Sandoval.

Martha Sandoval claims to have been too busy to take English classes (after a mere 17 years within our borders) but did manage to find the time to sue her state of residence for not providing her with government documents and services in her language of choice.

We can all take justifiable pride that in America, any immigrant has the right to fight all the way to the Supreme Court for her point of view, no matter how ill-founded.

The Supreme Court must now decide whether Martha Sandoval has the right to sue a state government for not complying with her particular interpretation of federal law. (For more details on the case, see “Judicial Activism on Trial.”)

As one can imagine, every liberal interest group in the land is licking its chops over the litigation possibilities created by a favorable ruling in Sandoval. These interest groups could enact their entire agenda merely by filing lawsuits based on the most expansive interpretations of federal statutes possible. No mere election need cramp their style ever again.

The Supreme Court is taking its responsibilities most seriously in the Sandoval case. Court watchers agreed that the oral argument in the case was conducted at a rarefied intellectual and legal level. There actually was real discussion at some length, which came as a bit of a surprise to those of us whose previous experience of Supreme Court argument came from the Florida election recount cases.

While relatively few questions were asked by the justices, some of the inquiries were disquieting, to say the least. Justice Breyer seemed to suggest that, since Congress was silent on one of the issues involved in Sandoval, the Supreme Court should feel free to fill in the blanks.

Most of the questions though should have made the pro-Sandoval side squirm. Time after time, justices both liberal and conservative asked questions which can be summarized as “from precisely which lawbooks are you getting this stuff?” (Two justices even had legal tomes delivered to their seats while the arguments were still taking place.) Eric Schnapper, the attorney arguing on Sandoval’s behalf, as well as the ACLU and the Southern Poverty Law Center, attempted to make much of a 1983 case, Guardians Association v. Civil Service Commission, NYC. That case is famous for having generated multiple opinions by the various Justices on the right of private persons to sue government entities but ultimately produced no clear guidance as to exactly who could sue whom for what.

The ACLU-SPLC brief in the Sandoval case works around this difficulty by totaling up sentences from the various opinions in Guardians and finding that “six members of the Court agreed that a cause of action exists.” (I do not recall the ACLU engaging in similar arithmetic when the Supreme Court’s final ruling in Bush v. Gore generated multiple opinions which could be added up as a strong majority in favor of the Bush position on Florida recount procedures.)

The importance of Sandoval to the litigation industry may also be judged by the ACLU’s high-octane rhetoric in its January 16th press release:

This is a case about whether victims of governmental discrimination deserve to have their day in court,” said Steven R. Shapiro, Legal Director of the ACLU. “In the 1960's, Alabama officials stood in front of the schoolhouse door and declared, “whites only,” today, the state is standing in front of the courthouse doors and saying “English only.”

There was one curious aspect to this case. Bill Clinton’s solicitor general, Seth Waxman, argued on Martha Sandoval’s behalf alongside Schnapper. Yet a visitor to the solicitor general's official website will find nary a mention of the Sandoval case.

Solicitor General Waxman would have good reason to want as few people as possible to know about his involvement in this case. He will be looking for a new job soon. Most attorneys agree that the lower court ruling in Sandoval is dreadful law and that the Supreme Court will hasten to overturn it. That won’t look too good on Waxman’s resume.