The MacNeil/Lehrer NewsHour

MR. LEHRER: Good evening. I'm Jim Lehrer in Washington.

MS. FARNSWORTH: And I'm Elizabeth Farnsworth in New York. After our summary of the news this Thursday, we devote the entire program to today's major Supreme Court decisions. Court watcher Stuart Taylor and others explain what the court said about voting rights, the Endangered Species law, and religious speech. NEWS SUMMARY

MR. LEHRER: The U.S. Supreme Court handed down major decisions today on election districts and the environment. A Georgia plan which created three black majority congressional districts was declared unconstitutional. The five to four majority said it violated the rights of non-black voters. The environmental decision was in support of the Endangered Species Act. By six to three, the court said private landowners cannot alter natural habitats. The case involved a Northern spotted owl in Oregon. The court also handed down a decision on religious speech. The five to four ruling sided with University of Virginia students who were denied funding for a Christian magazine. We'll go through today's court decisions one by one right after this News Summary. Elizabeth.

MS. FARNSWORTH: The shuttle Atlantis docked with the Russian space station Mir this morning. Capt. Robert "Hoot" Gibson steered the 100-ton Atlantis to within three inches of the 123-ton space station.

SPOKESMAN: Houston, Atlantis, we have capture.

SECOND SPOKESMAN: Copy, capture.

MS. FARNSWORTH: Five Americans and two Russians were on board Atlantis. Two hours later, they floated into the space station through a three-foot-long tunnel connecting the two ships. Gibson, the first to enter, greeted his Russian counterpart with a handshake. Once the Atlantis crew members were aboard Mir, they gathered in the station's work module and posed for pictures. This was only the second time in history that two spaceships have met in orbit. The first was the joint U.S.-Soviet mission nearly 20 years ago.

MR. LEHRER: The House of Representatives passed the Republican budget proposal today. The vote was 238 to 194. It aims to balance the budget within seven years and calls for cuts of $894 billion. Much of that will come from reducing the cost of Medicare and Medicaid. It also includes a $245 billion tax cut. This budget resolution does not require President Clinton's signature, but he again vowed to veto the final budget unless some of the cuts are scaled back. New home sales jumped nearly 20 percent in May the Commerce Department reported today. It was the largest single month rise in more than three years. Every area of the country showed improvement, except the Midwest, where sales remained unchanged.

MS. FARNSWORTH: The man who shot at the front of the White House last October, Francisco Duran, was sentenced to 40 years in prison today. The Colorado man fired more than two dozen shots at the mansion with a semiautomatic weapon. He was convicted last April of attempting to assassinate the President and damaging federal property. Security remained tight today at California airports, despite word from the Unabomber that yesterday's warning was a prank. The terrorist had threatened to blow up an airliner en route to or from Los Angeles sometime this week. Today the New York Times said it received a letter from the Unabomber saying he only wanted to stir things up. Federal Aviation authorities say they will continue to take the threat seriously and keep precautionary measures in place.

MR. LEHRER: A department store in Seoul, South Korea, collapsed today. At least 34 people died. More than 700 were injured. We have a report from Vernon Mann of Independent Television News.

VERNON MANN, ITN: There was a loud explosion, an eyewitness said. When the dust had settled, there was nothing. A hundred meter section of a five-story department store had collapsed into its own basement. Many hundreds are feared dead. A major rescue operation has been going on. Emergency services from all over the capital have been directed to the scene. The pink painted Sanpoong Department Store is one of Seoul's biggest. It contained more than 500 shops and employed 700 staff, most of whom would have been inside the building at the time of the collapse, along with an unknown number of shoppers. The scale of the damage is enormous. Some, like this girl, have been extricated from the debris. The authorities say it's hard to imagine that many more will have survived. Police at first suspected a gas leak, but some employees said they were told to evacuate after a crack appeared in a top floor ceiling.

MS. FARNSWORTH: President Clinton today authorized $15 million to help pay for a rapid reaction force in Bosnia. The money would come from the existing Pentagon budget. The President acted without the approval of Congress, which has resisted extra funding for military and relief activities. In Bosnia today, at least five people were killed by Serb bombs in Sarajevo, including a French U.N. peacekeepers. An apartment building in the downtown area was hit by a shell. Several people were injured.

MR. LEHRER: And that's it for the News Summary tonight. Now it's on to full coverage of today's major decisions of the Supreme Court. FOCUS - SUPREME COURT WATCH

MR. LEHRER: What the Supreme Court did today is the rest of the NewsHour tonight. It was the final day of the court's term, and the nine justices made the most of it, handing down several major decisions. We begin with the one drawing the most attention. It has to do with election districts and what part race can play in their design. Kwame Holman starts our coverage with this backgrounder.

KWAME HOLMAN: Election night 1992. Across the nation, especially in the South, minorities in record numbers were elected to the House of Representatives. In Florida, three blacks, the first from that state in this century, won House seats. Georgia, Louisiana, and Texas elected new black representatives, and Illinios and New York elected new Hispanic members. North Carolina elected two blacks, Eva Clayton and Mel Watt.

MEL WATT: I'm just happy to be here and be representing the new 12th Congressional District.

MR. HOLMAN: In all, twenty-two new minorities, thirteen blacks and nine Hispanics, were elected to the House. Why the big increase? After the 1990 Census and prodded by new amendments to the Federal Voting Rights Act, states tried to make it more possible for candidates favored by minority voters to win where they couldn't win before. They drew up more than 50 new congressional districts in which blacks or Hispanics are in the majority.

LANI GUINIER, Law Professor: The assumption was that the way you remedy vote dilution, the way that you empower a minority to elect representatives of its choice is to give that minority its own safe seat.

MR. HOLMAN: Lani Guinier is the former Clinton nominee to head the Justice Department's Civil Rights Division. A law professor at the University of Pennsylvania, Guinier says minority districts were considered acceptable.

LANI GUINIER: The Voting Rights Bar believed that this conventional remedy which had been affirmed or at least endorsed by the Justice Department and by the Supreme Court was the preferred remedy.

MR. HOLMAN: But two years ago, the Supreme Court was asked to review North Carolina's voting rights remedy, and writing for a five to four majority then, Justice Sandra Day O'Connor said North Carolina's 12th Congressional District had such an unusual shape that it resembled racial gerrymanders of the past and political apartheid. The court called for proof the district's bizarre shape was not drawn to segregate voters into separate voting districts because of their race. That 1993 ruling sped up challenges to other majority minority districts, like Louisiana's Fourth Congressional District, criticized as the "Mark of Zorro" District which since has been redrawn. Today's ruling specifically struck down the designs of three majority black districts in Georgia, including the 11th, stretching from Atlanta to the sea and disparagingly known as the "Sherman's March" District.

MR. LEHRER: Now to what the court said in this case today. Stuart Taylor reports regularly on the court for us. He's the senior writer for the American Lawyer and Legal Times Magazines. Stuart, what was the thrust of the majority's view as to why those Georgia districts didn't measure up?

STUART TAYLOR, American Lawyer Magazine: The majority said that they didn't measure up because the predominant factor in drawing those districts, in particular in getting three black majority districts, instead of the two that the state had originally drawn, was race, that they were pushing with the Justice Department pushing the state to create another black majority district, and the court said that, that when race becomes the predominant factor, that is presumptively unconstitutional. It can only be justified if it is necessary to remedy previous violations of black voters' rights. And the court held that that wasn't the case here.

MR. LEHRER: Was the weird design of those districts an element? Was that what -- what did the court say about that?

MR. TAYLOR: These districts were not as weird in design as the North Carolina District that they cast out on two years ago. These districts, when you just look at them on a map, are not much weirder than a lot of voting districts are. They're not usually nice little squares or circles, but what the court held that the record made it clear that that district had been drawn -- the 11th District in Georgia -- by taking a huge swath of the state and pulling in pockets of black urban population from Augusta, from Atlanta, and from Savannah, mixing them together with rural land, with swamp land, with narrow corrdiors, solely for the purpose of getting a black majority and not for the purpose of putting people with similar interests from local communities together.

MR. LEHRER: Did the court say that it was all right to consider race in some -- to some degree, but it's not all right to consider it as "the" sole reason for drawing these districts? Was that the real point here?

MR. TAYLOR: They did say that. They acknowledged that race is always something on the minds of people drawing district lines, and it's unrealistic to expect they're not going to have it on their minds. A Democratic incumbent will want a little black pocket of black voters perhaps in his district, for example, because they tend to vote Democratic more often.

MR. LEHRER: You mean, a white Democratic incumbent?

MR. TAYLOR: A white Democratic incumbent. Yes. And so the court didn't --

MR. LEHRER: Say a white conservative Republican might not want blacks in his or her district for an opposite reason but for political reasons as well.

MR. TAYLOR: Exactly. And it gets hard to sort out the political from the racial. And so the court didn't tackle the impossible task of saying no one can ever consider race. What they said is race can't be the predominant factor by which they mean it can't dominate alost to the exclusion of things like having the district be compact, having it be contiguous, keeping traditional communities together, keeping precincts together, what they call the traditional voting district criteria protecting incumbents. And in this case, in the Georgia case, they said, in essence, that all of the traditional criteria were put aside in a, in a single-minded push to get a third majority black district to add to the two they already had in Georgia. And, and it was also clear that they were doing it because the Justice Department was demanding that they do it and was telling them that the Voting Rights Act required them to draw a third black district.

MR. LEHRER: And the court said that's not the case, right?

MR. TAYLOR: The court said, among other things, the Justice Department was wrong. The Voting Rights Act did not require that a third black district be drawn here, and that the state is not entitled to do it just because the Justice Department tells them they have to.

MR. LEHRER: Is it possible, Stuart, at this point to interpret what this decision is going to mean for those 50 districts that Kwame was -- there were 50 districts altogether involved in this all over the country, most of them in the South that have these similar kinds of problems.

MR. TAYLOR: It's clear that it casts a shadow over a lot of them. For example, there were some 26 black -- twenty-five or six black majority districts in Congress of the four hundred and thirty-five congressional districts in 1992. That was kicked up closer to 40 by redistricting, driven by previous Supreme Court Voting Rights Act interpretations. It seemed to require drawing more black districts. A lot of those new black districts could get knocked out, and the same could happen to some of the new Hispanic majority districts that were drawn. Now, some of the voting rights advocates, advocates for black groups like Laughlin McDonald of the American Civil Liberties Union, have put out press releases today that they say things like Supreme Court guts Voting Rights Act; they've crippled minority voting rights; all of the black districts in the country are now presumptively unconstitutional. I think that's overstating it some.

MR. LEHRER: All right. Now, five to four vote, who were the five?

MR. TAYLOR: The five -- the opinion was written by Justice Anthony Kennedy, Reagan appointee, joined by the usual conservative five, Chief Justice William Rehnquist, Justice Antonin Scalia, Justice Sandra Day O'Connor, and Justice Clarence Thomas.

MR. LEHRER: So no surprises there?

MR. TAYLOR: No surprises in the vote.

MR. LEHRER: All right now, but the four in the minority had some strong things to say in dissent, did they not?

MR. TAYLOR: They did. Justice Ruth Bader Ginsburg wrote the main decision and was joined by the other Clinton appointee, Stephen Breyer, along with Justice John Paul Stevens, and Justice David Souter. She read or summarized her dissent from the bench, which only happens two or three times a year, and was a mark that she was saying this is important, what they've done here is really bad.

MR. LEHRER: I mean, that is, that is common knowledge within the Supreme Court world that when a Justice speaks from the bench about a decision, that means, hey, this is something I really care about?

MR. TAYLOR: Exactly. It only happens -- I don't know that she's ever done it before, and it's only done by any member of the court I'd say one or two or three times a year.

MR. LEHRER: What did she say?

MR. TAYLOR: She said two things. First she said we have a long history of racial discrimination in this country, including discrimination against black voters, that until recent years resulted in Congress being almost all white, for example, and in the exclusion of black representatives from offices all over the country where there's significant black population. And she said, we need majority black districts, majority Hispanic districts, sometimes as a remedy for this, and the court is making it harder to do that. She said it was not justified by anything in the Constitution, and she said it's going to make a mess in terms of litigation. The state legislatures drawing these districts and judges passing judgment in lawsuits are going to have a heck of a time figuring out whether in any given set of circumstances, if they follow the Supreme Court's old Voting Rights Act's precedents, they have to draw a black majority district, or if they follow it's more recent constitutional predecents, they're forbidden from drawing a district.

MR. LEHRER: Finally, on this particular case, Stuart, those of who you cover the court and watch it regularly, is this a -- is this in concert with what the court has been doing on racial issues recently?

MR. TAYLOR: Yes. This year -- this term of the court which ended today -- has been a big, a big term for the new, not-so-new, I suppose, conservative majority tightening its push toward a requirement of colorblindness. It's in sync, and, in fact, it's the same five-four votes, same five, same four, as the decision a couple of weeks ago in the Adirand case, which required what they call strict scrutiny of all affirmative action racial preferences.

MR. LEHRER: Yeah, which we talked about on that, on that night. Okay, thank you, Stuart. Don't go away. Elizabeth.

MS. FARNSWORTH: We turn now to two members of Congress for their views of this decision. Congressman Gary Franks is a Republican from Connecticut. Congressman Cleo Fields is a Democrat from Louisiana. Both are members of the Congressional Black Caucus. They join us from Capitol Hill. Thank you for being with us, gentlemen. Congressman Fields, let's start with you. I know there was a Louisiana case decided today, and I understand that the court ruled that the four residents challenging Louisiana's reapportionment plan lacked legal standing, so I think -- I gather this means that your district is not immediately endangered or threatened, but what about in the future? Do you think it is endangered?

REP. CLEO FIELDS, [D] Louisiana: [Capitol Hill] Well, I think this decision in Georgia certainly gives an invitation to many people all across the country, an invitation to go to the courts and file in every majority minority district, be it Hispanic, be it black, and allege that it's unconstitutional. I think the court somewhat punted. They didn't really deal with -- they didn't get into guidelines, give the legislatures across America real guidelines to go back in drawing, in drawing districts. So yes, I think for the time being, the 4th District in Louisiana is safe, but when one district is under attack, a voting rights district is under attack, then all of them basically are under attack.

MS. FARNSWORTH: Well, the legal director of the NAACP today said if race can't be a factor, it's going to be almost impossible to preserve the black districts. Do you think that's true?

REP. FIELDS: I think that's absolutely correct, but the court did not rule that race cannot be a factor. The court ruled that race can, in fact, be a factor but if it is a factor, it can't be the only factor. And they give it a stricter burden of proof, and then they must show a compelling state interest, and that compelling state interest must be narrowly tailored. So the court certainly did not rule that race cannot be a factor in reapportionment. For them to rule that would almost be assasine, because you cannot have state legislatures in state -- in states across the country drawing lines and not take any kind of issue such as race into account, because they do it, unless you put blindfolds over their eyes and let them go into rooms and cut off the lights and use computers, and I don't see that happening anytime in the near future.

MS. FARNSWORTH: Congressman Franks, what is your reaction to today's ruling?

REP. GARY FRANKS, [R] Connecticut: [Capitol Hill] Well, in 1993, in fact, on June 30, 1993, I introduced a bill that would prohibit the construction of a district based on race or language minority status. Over a hundred members of Congress co-sponsored that bill, but I was not given a hearing by the Democrat-controlled Congress at the time. So obviously, I'm pleased with the decision. I come from a district that's 90 percent white, and I've been able to show time in and time out that white people would vote for a black candidate. And I'm not an aberration. You have people like Rice, the mayor of Seattle. You have former Mayor Tom Bradley. You've got Gov. Wilder, and we all know that if elections were held today, Colin Powell would probably get elected President of the United States. So I strongly believe that we do not need to be overly race conscious and that we do not need to be identifying districts as black districts, brown districts, white districts, and yellow districts. I don't want to go into a high school and tell some youngster that if you want to be a congressman, and you're an African-American, go find a black district. That is wrong.

MS. FARNSWORTH: Congressman Franks, do you think this was true in the South, though, before states were compelled by the Voting Rights Act to construct districts with black and Hispanic majorities, when we had no, what, Southern State had sent a black to Congress since 1901?

REP. FRANKS: Well, for quite a long period of time there weren't many African-Americans who were seeking office in some of those Southern states. Let's keep in mind when Jesse Jackson ran for president back in 1988, he carried Connecticut, but he also carried South Carolina. Let's keep in mind that we also had Gov. Wilder elected to the position of governor of the state of Virginia. Now, I strongly believe that we do not need to identify districts in terms of color. To me, it's setasides for congressmen, and I don't believe in that. And to me, setasides would say tht you need to put your thumb on the scale in order to create a certain change. I don't believe that.

MS. FARNSWORTH: How do you respond to that, Congressman Fields?

REP. FIELDS: You know, it's ironic. Gary would sit here and say that there's absolutely nothing wrong with a state legislature drawing a 90 percent white district but there is something inherently wrong with a legislature drawing a 55 percent black district. I find that to be somewhat bizarre. How can one say that it's absolutely okay to have a 90 percent white district but it's not all right to have a 55 percent black district? And it's ironic that the court struck down the most diverse district in the state of Georgia, one of the most diverse districts in the state of Georgia and one of the most diverse districts in the whole country. These districts are not black districts. They are districts that a majority are minority districts. They don't guarantee a black person anything. The only thing they guarantee a black person is the opportunity to get elected. And Gary, you know and the record will reflect that in the Southern part of our country, there is a lot of racial voting, black voting taking place. And it's ironic that, that the Supreme Court would strike down the district in Georgia, when in this -- in Louisiana, for example, Louisiana sent this first African-American to congress since Reconstruction four years ago. Now, you take North Carolina.

REP. FRANKS: If I could make a statement --

MS. FARNSWORTH: Let me interrupt you one second. Yes, Congressman Franks, respond to the --

REP. FRANKS: You have a district in Georgia, which I testified down in Georgia against this district, by the way, as well as having a bill that would have 100 co-sponsors, that would span 250 miles. What they did was they went from the equivalent of Danbury, Connecticut, all the way up to Boston, Massachusetts, and they just took black people and put it into that district. That is segregation. That is wrong. That is apartheid in our country today, and that is why in previous decisions, whether it would be Shaw vs. Reno, et cetera, they've ruled it that way. No one's complaining about a compact district that would be majority minority. I love those districts. There's nothing wrong with that. But when you go 250 miles and then put all the blacks in one district, that is absolutely wrong, and that is why I am not surprised by the court decision.

REP. FIELDS: Well, you know, what strikes me as being amazing is, you know, if you have a 90 percent white district, it's not -- it is an integrated district, but if you have a 55 percent black district and a 45 percent white district, it's not integrated. Secondly, I think the whole issue here is not how a district looks, the appearance of a district, but really the real issue here is the appearance of Congress. Will we go back to the days where Congress looked -- consisted of one group of people, white males, to be quite frank about it? Now, this Congress, when you put a mirror in front of the United States Congress, it ought to reflect America. You ought to see diversity. And we ought not stand in the way of progress, you know, there are 40 black members of Congress, and 535 members of the whole United States Congress, 100 in the Senate, and 435 in the House. I mean, no one would have a thought that there is some advantage given to black people. There are only 40 members of 535. If Gary would have his way, there would only be three members.

MS. FARNSWORTH: Congressman Franks, respond to that, please.

REP. FRANKS: Let me comment on that. In the last election, we had 27 African-Americans as Republicans that ran for office, a record number. We had seven black Republicans who received over 40 percent of the vote, while being outspent two tothree to one. We elected another black Republican to Congress in the person of J. C. Watts from Oklahoma. We have a black statewide office holder who's a Republican out of the state of Ohio, Ken Blackwell. We have a black secretary of state in the state of Colorado. We have black Republican state representatives in Massachusetts, et cetera. The reason why I'm saying this is because they know that you do not have to be in a district that's majority minority to win, or in a state that's majority minority to win. Obviously, we don't have one of that nature. It was my election and the elections of others that has said to people, especially those who are Republican, you can run, run on your ideals, run on your character, run on your vision for the district, and if your vision would match that of your constituents, you'll be elected no matter whether --

MS. FARNSWORTH: Congressman Fields, I have a question for --

REP. FRANKS: -- it's a majority black, white, brown, yellow, would not make any difference whatsoever.

MS. FARNSWORTH: Congressman Fields, let me interrupt one minute here. What other challenges to new minority districts is this likely to have an impact on?

REP. FIELDS: I think it's going to have an impact on several districts across the country, but the question that I posed to Gary tonight is how many black members of Congress are elected from the South, from districts that are not majority minority? Zero.

REP. FRANKS: The problem is they created, what they did in the most recent election, Cleo, is the fact that they created districts such as the Cynthia McKinney district, in which they went 250 miles to create a district. They created a district in North Carolina that's only connected via a highway. You open the door, you're in someone else's district. Those things are wrong. It's segregation all over again. It's ironic that certain individuals of Congress would be supporting putting blacks in one district in order to elect an African-American. It's not necessary. It's wrong. It sends the wrong message to children. I have -- I have three children, and I don't want any of my children to think that they have to have a special -- special help in order to get elected, because that says the wrong thing to me, and it says the wrong thing to America. No, you do not need to have that type of assistance. You just need to be able to run on your views. And believe it or not -- I'm not saying there aren't racist people out there -- there are a lot of racist people out there --

MS. FARNSWORTH: Excuse me.

REP. FRANKS: -- but most people would like to be able to vote for a person based on what they bring to the table.

MS. FARNSWORTH: But Congressman Franks, what about the point that Congressman Fields made, that there might be no African-Americans from the South in Congress if there can't be majority minority districts?

REP. FRANKS: Well, I would argue against that. If you look at the state of North Carolina, how many blacks actually were the Democrat or Republican nominee for Congress in the last 40 years? You wil find that there are none, possibly one at the most. If you look at the state of Louisiana -- I'm not sure, but obviously, Cleo would have that answer -- how many African-Americans over the last 50 years actually were the Democrat nominee or the Republican nominee? The question should be asked the same in Arkansas. The question should be asked the same in Mississippi and Florida. You'll find that the numbers are very low. When I ran for office, the first thing they told me was I was going to lose because white people wouldn't vote for me and because I was a Republican, black people weren't going to vote for me. I wouldn't be sitting here today if I believed those individuals. We have to get away from color and being so race conscious and deal with the issues and the values and principles that a person would bring to the table and allow one to be judged on that basis.

REP. FIELDS: You're missing the whole point. You're missing the point that I'm making. I'm not saying there's, there's nothing wrong with being colorblind. You're sitting here today and saying it's perfectly okay to have a 90 percent white district, but you're saying --

REP. FRANKS: I'm not saying that. I'm not saying that.

REP. FIELDS: You represent a 90 percent white district, do you not?

REP. FRANKS: Yes, I do, but --

REP. FIELDS: Is your district unconstitutional, illegal?

REP. FRANKS: No, it is not.

REP. FIELDS: No. Okay, because --

REP. FRANKS: As I said before, I have no problems with --

REP. FIELDS: Why is my district unconstitutional and illegal and strike you as being a district that's illegal simply because it's 45 percent white and 55 percent black?

REP. FRANKS: It has nothing to do with it. As I said before, I like compact districts.

REP. FIELDS: My district is much more diverse than your district.

REP. FRANKS: I like compact districts. My point is, you should not have a district that would span 250 miles. Your district was called the Zorro district because it went from the top of Louisiana, straight across about the middle of Louisiana, and straight across again.

REP. FIELDS: And that's the old district, but it's not the present district.

MS. FARNSWORTH: Congressman. Excuse me, I need to interrupt this argument. Congressman Fields, what about the claim of the attorney representing the original plaintiffs in the Louisiana case? He said that the impetus to create black majority districts stems from a stereotypic view that blacks would vote only for blacks and whites only for whites. What about that criticism?

REP. FIELDS: Well, the only thing we can look at is past history of voting patterns. If you look at the state of Louisiana, you look at the state of Georgia, and all of the Southern states, you'll find that in many cases that is the case. I wish we could get beyond that. I mean, incumbents stand a far better chance in getting crossover vote than challengers. That is just one of the sores that we have in the Southern part of our country. We want to change that, but do we change it by not creating districts that give Hispanics and African-Americans an opportunity, not a guarantee to a seat, but just an opportunity to win a seat. If we don't provide opportunities to give opportunities to African- Americans and Hispanics, then we will have a Congress that will not consist of African-Americans and Hispanics. And I don't think that's the kind of representation we would want in any governmental body, be it a state legislature, be it a U.S. Congress, be it a school board. I think one of the things we pride ourselves on the most as Americans -- and that is democracy -- and we cannot have true democracy unless we give everyone the opportunity to participate. We've integrated schools. We've integrated Marines, the Marines, the Air Force. We've integrated our armed services. Why not integrate the political institution? And the only way you do that is by giving people reasonable opportunities. And that's all these districts do.

MS. FARNSWORTH: I'm sorry to interrupt, but we have to go. I'm sorry.

REP. FRANKS: The only point that I would argue is that you don't do it by racially gerrymandering a district.

MS. FARNSWORTH: Okay, thank you both.

REP. FIELDS: Unless it's 80 percent white.

MS. FARNSWORTH: Thank you both very much for being with us.

REP. FRANKS: It has to be a compact district.

MS. FARNSWORTH: We'll have to revisit this one. Thank you. Jim. FOCUS - ENDANGERED SPECIES

MR. LEHRER: Moving on now to a second major decision of the court today, the one on the Endangered Species Act. And it's again to Stuart Taylor for the details of what the court said and did and what did the court say about the Endangered Species Act, Stuart?

MR. TAYLOR: What the court did was it upheld a longstanding regulation by the Interior Department that broadly defined some terms of the Act as protecting -- as requiring landowners, private landowners, not to destroy the habitat of endangered species if that would lead to their death or injury. The dissenters argued that the statute in question, the Endangered Species Act, only barred hunting, killing, capturing, direct application of force to the birds, for example, the Spotted Owl. The majority rejected that interpretation and overruled the lower court and upheld the traditional interpretation of the Act. If it had gone the other way, it would have -- it would have been a dramatic change.

MR. LEHRER: Briefly, what were the facts in this case, this Oregon case?

MR. TAYLOR: The -- the case was a direct facial attack on the regulation, so there wasn't somebody who said, hey, you killed a bird in your backyard or you destroyed a particular piece of habitat, and you can't do that. And, in fact, the court emphasized that; in upholding the regulation, they said that there may be circumstances where the Interior Department would go too far and would, would prosecute some farmer, for example, for clearing a field when looking at the facts, it wasn't clear that would hurt an endangered species.

MR. LEHRER: This was a straightforward attack on the law itself?

MR. TAYLOR: A straightforward attack on the law. The people attacking it included logging companies, families dependent on forest industries and small landowners both in Oregon and in the Southeast who said they'd been injured by the use of the Endangered Species Act to protect in particular the Northern Spotted Owl and something called the Red Cockaded Woodpecker.

MR. LEHRER: Okay. And so for all practical purposes, today's decision, as you say, it's -- it maintains the status quo, is that right, doesn't change the way anybody operates tomorrow?

MR. TAYLOR: Exactly. It does maintain the status quo, and the case had been closely watched because it would have been such a dramatic gutting of the traditional interpretation of the Endangered Species Act if it had gone the other way. What it also does is it throws the ball to Congress because already I'm getting press releases from members of Congress who have said, well, now that -- now that the court has upheld this oppressive interpretation towards property owners, we in Congress have to pass new legislation to fix it.

MR. LEHRER: And there was nothing in the decision today that spoke about the constitutionality of this that would prevent legislation, is that right, just on the face of it?

MR. TAYLOR: That's clear, yes. If Congress wants to change it, Congress can change it. There are really -- the only real constitutional issue in the neighborhood is if the Endangered Species Act goes too far down the road of, of taking away property rights, then, then the property owners might have a constitutional clam, but sinceCongress is moving in the direction of protecting property owners, that's not likely to be a problem with anything they passed.

MR. LEHRER: All right. Now the vote was six to three. Who are the six?

MR. TAYLOR: This was Justice John Paul Stevens, the senior and most liberal member of the court writing the opinion, joined by Justices O'Connor and Kennedy, who are the two most, oh, moderate members of the court on most issues, and Justices Souter, Ginsburg, and Breyer, the last two being the Clinton appointees. The dissenters were Justice Antonin Scalia, who wrote, wrote the dissent, joined by Chief Justice Rehnquist and Justice Thomas, and those three are on a whole lot of fronts the three most conservative members of the court.

MR. LEHRER: And what was the thrust of their dissent?

MR. TAYLOR: It was twofold. First, they, they gave an extensive interpretation of the original Endangered Species Act and of the language of the Act, and they siad if you look at the words that Congress used in describing what you cannot do to an endangered species, there are words like "take," "hunt," "capture," "harm," harm being the vaguest of them, and none of those words say anything about you can't harm the habitat. And they spent page after page going through the history of the Act and the language of the act. For example, the Act has an explicit prohibition against the federal government harming habitat on federal lands. It has no parallel provision on private lands. So Justice Scalia said this shows that they didn't intend to apply it to private lands. We also made --

MR. LEHRER: But the federal government has, in fact, been applying it to private land, right? That's what brought -- even though it wasn't a specific incident that triggered this lawsuit, it was the federal government's position that they had the right to enforce it on private land and brought this lawsuit.

MR. TAYLOR: Right. And it's been their position for a long time, since 1975, when this regulation was first passed. But the dissenters also made a forceful policy argument. It might be worth reading a brief chunk of what Scalia said.

MR. LEHRER: Sure. This was written by Justice Scalia.

MR. TAYLOR: Justice Antonin Scalia.

MR. LEHRER: Okay.

MR. TAYLOR: "This regulation imposes unfairness to the point of financial ruin, not just upon the rich but upon the simplest farmer who finds his land conscripted to national zoological use." A little sarcasm there at the end, but his point is not only is this wrong in terms of what Congress passed a long time ago, it's, it's bad policy, it's opressive, and it will have a bad result, and to some extent, I think, he's speaking right into the continuing congressional debate over whether they should give property owners more protection against regulation to protect endangered species.

MR. LEHRER: Now, again, based on, on your observations on this court and tracking this court, is this decision in -- consistent with its past decisions on environmental issues?

MR. TAYLOR: Yes it is. Now, a lot of people had wondered whether, oh, oh, maybe a lot of environmentalists were worried they would lose this case.

MR. LEHRER: They were expecting it to go the other way.

MR. TAYLOR: They were scared it might because it had gone the other way in the federal appeals court with -- and the federal appeals court decision was very alarming to the environmentalists, and if the Supreme Court had affirmed that decision, it would have been a big change that would have alarmed environmentalists. The oral argument a couple of months ago in this case, I think, people who watched the oral argument and were sort of counting votes based on what the people said at the argument began to give people a sense, well, the environmentalists are going to win this, and the property rights movement is going to lose it. And I think, frankly, the property rights movement anticipating that has been hard at work in Congress.

MR. LEHRER: Yeah, I see. But this is consistent then? This is not a huge surprise that the court voted six to three on this?

MR. TAYLOR: It's not a surprise.

MR. LEHRER: Okay. Thank you, Stuart. Again, don't go away. We'll be back. Elizabeth.

MS. FARNSWORTH: For more on the impact of the decision on endangered species, we have two views. Perry Pendley is president and chief legal officer of the Mountain States Legal Foundation, a non-profit public interest law firm in Denver funded by ranching, timber, oil, and gas, and mining companies. Carl Pope is director of the Sierra Club, an environmental advocacy group. Mr. Pope, is this an important case for environmentalists?

CARL POPE, Sierra Club: [San Francisco] Well, it's a very important case for America's wildlife. The fact is you can't save wildlife unless you save habitat. And if the court had reversed the Endangered Species Act in the way that the property rights movement asked it to the extremists of the property rights movement, it would really have said that the only way we can protect endangered species is one of two things; either we can have the government buy up all the land in the country, which I don't think anybody wants, that has wildlife on it, or we can save things in zoos. And I really don't think that's what Congress intended, I don't think that's what the American people want, I think it would make no sense at all. So we think this is extremely important and a very conservative decision by this court, and I want to emphasize this is a very conservative court, and it has frequently ruled against environmentalists in the past, so I think by saying what they said today, what the court really did was to underline the importance of

WILLIAM PERRY PENDLEY, Mountain States Legal Foundation: [Denver] The importance of habitat for the protection of our wildlife.

MS. FARNSWORTH: Mr. Pendley, what do you think about this decision?

MR. PENDLEY: Well, I think what the Supreme Court did was say to the property owners of America who have land on which endangered species might be found, Mr. Bruce Babbitt, Secretary of the Interior, is now your landlord. This was -- this had huge ramifications for the American people simply because it gives federal agencies the power to go on their land and say you can't use your land because we think there's habitat here. But from the standpoint of what it was, it was simply -- the question before the court was: Did Congress mean the four-letter word harm that Congress put in the statute, did Congress mean for that to include habitat modification? And on that narrow issue, the Court said, yes, it did.

MR. POPE: I think the court really had no choice. If you look at the alternate interpretation, it means, well, you can cut the tree in which a Bald Eagle nests down while it's building the nest, may be depending on whether you think an egg is an eagle, you can cut it down while there's an egg in the nest, and then you can't cut the tree down once the egg hatches, and I think it's pretty clear Congress didn't intend that kind of an interpretation, and it would have made it impossible to carry out the purpose. It really makes very little sense. Wildlife belongs to all of us. Landowners don't own wildlife, and landowners have ever had in this country the right to do whatever they wanted to with their land. Your right to use your land is limited to a whole lot of public restrictions, and as we have begun to wipe out habitat and lose species and lose whole ecosystems, Congress said with the Endangered Species Act, we're going to put an obligation on landowners that they manage their land --

MR. PENDLEY: That's totally wrong.

MR. POPE: Wait, wait, wait -- that they manage their land in a way which preserves endangered species habitat on that land.

MS. FARNSWORTH: Mr. Pendley, what about that?

MR. PENDLEY: In 1973, Congress said there's two problems: One, people are killing these species, we ought to stop that and make it legal, and said at the same time, we're losing habitat and the way to solve that problem is we're going to buy the habitat up. That's what Congress decided in 1973. After deciding to do that, Sen. John Tunney went to the floor of the Senate and said, I have a minor technical amendment I want to add, I want to put the word "harm" into the definition of a taking of an endangered species. And it's a minor technical amendment. Well, the court today declared that this four-letter word is now the tail that wags the dog of the Endangered Species Act, because it gives the secretary of the interor power over the 60 percent of this country that is privately owned.

MS. FARNSWORTH: Well, Mr. Pendley, what would you have done? Do you not accept the argument that to preserve a species you have to preserve its habitat?

MR. PENDLEY: Well, the question -- the question really is --

MR. POPE: I'd be interested in your answer to that question.

MR. PENDLEY: If you're going to save the habitat, Congress decided the way to save the habitat, it's purchase the property from the private landowner. I mean, I want to explain something to the American people. What is happening to private landowners today under the Endangered Species Act would be like if the federal agencies came to your home tomorrow and said, we're going to solve the homeless problem by putting them in your back bedroom, and if you do anything that disturbs their behavior, you'll go to jail.

MR. POPE: Mr. Pendley, wait. We have the Fifth Amendment to the Constitution. The court -- this court is a conservative court, and these are six Justices in this court. They have upheld the Fifth Amendment. They have said that if the federal government comes and takes your property, if it takes away all your economic use of the property, the federal government has to compensate you. There's an enormous difference between that statement, between putting people in your bedroom, and between saying to a landowner who has a Bald Eagle nesting tree on his property that he can't cut it down even though cutting it down might, indeed, be an economically profitable thing for him to do. Landowners do have --

MR. PENDLEY: Federal agencies already have power over that landowner if he tries to cut down the tree, because the definition includes so many terms, it has pursue or harass or hunt or capture or collect, do all these bad things to the eagle, if the landowner cuts down that tree and hurts that eagle, he'll go to jail for that.

MR. POPE: But suppose he cuts down the tree when the eagle is not --

MR. PENDLEY: What the regulators have done is said in Oregon, if you own 5,000 acres, you can't touch a tree on 5,000 acres because we think the owl needs all of it.

MS. FARNSWORTH: Mr. Pendley, what do you think about the argument that this will lead Congress to be even more determined to act on the Endangered Species Act?

MR. PENDLEY: Well, I think this is a case that the -- the environmental extremists will regret winning. I think they're regret winning this case. This will be the beginning of the end of the environmental extremism to the point that it says we want it all, we want everybody's land, nobody has any rights anymore. And I think you're going to see an incredible reaction at Congress over this definition. And I think it says something else too. Last November, the American people said we're fed up with Congress, we're fed up with Congress passing laws that we find out ten or twenty years later what they really mean. It's time Congress wrote laws that we understood what they meant, not 22 years later like this law but the day it was written.

MR. POPE: Well, Mr. Pendley, I guess I would read the political tea leaves a little differently. The New Mexico legislature, which happens to be in the hands of relatively conservative people at the moment, just rewrote the state of New Mexico's Endangered Species Act. And they strengthened, they didn't weaken, they strengthened the linkage between habitat protection on private land, because that's what they're governing, not public land, and endangered species. The American people don't want their wildlife to be put in zoos. We don't want it all. We have cut down already 90 percent of the old growth forests in this country. We have drained 90 percent of the wetlands. What the American people are asking for is not that we set everything aside for wildlife; they are asking that we set aside enough land, enough habitat, enough swamp, enough forest, enough range land, that the Bald Eagle and the Grizzly Bear can survive in this country for our grandchildren. And I think that once the American people understand that what this debate is about is whether we're going to save wildlife in the wild and save the wild with it, or save it in zoos, that this Congress, in fact, will change the Endangered Species Act. The Endangered Species Act is not perfect. It is not wholly written.

MS. FARNSWORTH: How do you read the politics?

MR. POPE: But they --

MR. PENDLEY: Let's cite a western case. Gov. Fife Symington gave a speech in Washington, D.C., just last week, and he said, don't tinker with the Endangered Species Act, repeal it, get rid of it, it's destroying the economy of Arizona and the people understand that.

MR. POPE: And this is the same Gov. Symington whose takings bill on this very same topic, his property rights bill was rejected at the polls last November by 60 percent of the voters of Arizona and Gov. Symington hasn't given up. He's a very persistent man. He's going to try to do by executive order what his voters told him not to do by popular mandate last November in the same election you referred to, and I think Gov. Symington's going to find that just as he was out of step with the people of Arizona last November, he's out of step with the people of Arizona today.

MS. FARNSWORTH: I'm interested in the argument between the two of you, because it seems to reflect an argument going on, especially throughout the whole West. We've had stories recently on this program about the tremendous anger that some ranchers and, and farmers in the West have about fish and game and other federal agents coming on to their property. I want to ask both of you -- let's start with you on this, Mr. Pendley -- is anything being done between environmental organizations and -- and say timber companies, farmers, ranchers, to try to dilute that anger alittle bit and get people together in any kind of a compromise on these issues, or is -- is it just getting worse all the time?

MR. PENDLEY: Well, I think it is getting worse. I explored this in my new book that's coming out -- War on the West -- coming out in August, where I talk about this very issue. And I mean, this lawsuit that you saw before the Supreme Court today on Sweet Home is a good example, because what happened when the, when the ability to harvest timber on public lands, on federal lands in Oregon and Washington was cut back because of the Northern Spotted Owl, environmentalists immediately went to landowners throughout Oregon and sent 'em letters and said we're going to file this lawsuit against you and, in fact, did file lawsuits against private property owners to say you can't harvest trees on your private land. I mean, we're talking about people who bought a piece of land with the idea that over time they'd be able to harvest the timber, it would be their retirement, it would provide for them in their retirement, golden years, and all of a sudden, the environmentals come in and say, you don't really own this, we own this, we control it.

MS. FARNSWORTH: How about that, Mr. Pope? Are there any moves between environmentalists and these groups to try to get some of this, make this anger a little less dangerous?

MR. POPE: Well, absolutely. If you look at the New Mexico case I referred to, that was a compromise bill which was supported by environmentalists and by most landowners in New Mexico in a very conservative political climate. There is a handful of people who kind of had the Daniel Boone attitude that they ought to be able to do with their land anything they want to, and I'm afraid it probably isn't possible to reach a compromise with people who say, as one Congressman from my own state of California said, let's put all the endangered species in a room and blow 'em up. Those people I don't think you can compromise with, but I think that most landowners, most ranchers, most owners of small private timber lots do not own endangered species habitat. They own second growth forests, which they can cut down without getting in the way of the Endangered Species Act. They may want to make use of their land, but they don't want to abuse their land. They want to keep the wildlife there. We can and we need to work things out with those folks. There is this noisy minority. It's very extreme. It walks around carrying guns. It blows up federal offices. It doesn't --

MR. PENDLEY: That's outrageous. That is a lie. That's an outright misrepresentation, to say that about private property owners, people who are upset about what the government is doing -- to accuse --

MR. POPE: I said there is a small minority -- wait -- wait --

MR. PENDLEY: --- those people of bombing buildings, you are out of line, sir. That is an outrageous representation, and you owe the American people in the property rights movement in this country an apology for that extremist, outrageous remark, sir!

MR. POPE: I was specifically saying that I think the overwhelming majority of property owners are very reasonable and you can work things out with them. There is in this --

MR. PENDLEY: People who blow up buildings are kooks! They have no relationship to the property rights movement. You're out of line to continue this line of dialogue.

MR. POPE: Excuse me, if you look at the situation in Michigan, you will see that the Michigan Militia and parts of the property rights movement, only parts of the property rights movement and militia in Michigan have been working very closely. I think it's important for all of us to --

MS. FARNSWORTH: Gentlemen, we --

MR. POPE: -- separate out the extremists -- and there are extremists on both sides -- I'll concede that -- but I think we need to separate out the extremists and then bring the people of goodwill together and work this out. And I think most people on the property rights side are all people of goodwill, sir, but there is a minority which is out there saying, repeal the Endangered Species Act. I think that's an extreme position, not a moderate position.

MR. PENDLEY: Unbelievable, unbelievable.

MS. FARNSWORTH: Mr. Pendley, we have about two seconds. Do you want to say something before we go?

MR. PENDLEY: Well, we're not just talking about Spotted Owls. We're talking about endangered snails and flies and rats, and there are going to be between seven hundred, nine hundred, nine thousand endangered species in this country. The 2/3 of this country that is privately owned is now at great risk, because Babbitt and his boys are going to come looking for endangered species and under this ruling, private property owners are at risk.

MR. POPE: And we are actually talking about the habitats --

MS. FARNSWORTH: Mr. Pendley and Mr. Hope -- we have to go -- we have to go. I'm sorry.

MR. POPE: -- on all which all of our wildlife depend.

MS. FARNSWORTH: Thank you both for being with us. Jim. FOCUS - RELIGIOUS SPEECH

MR. LEHRER: Finally, the court's big religion decision today, involving a student Christian publication at the University of Virginia at Charlottesville, and now to Stuart Taylor again. First, tell us the facts quickly on this case.

MR. TAYLOR: The University of Virginia has something they call the student activities fund. Every student pays $14 a semester into this fund, and they pay for all sorts of activities. The University doesn't formally associate with those activities, but it does pay for them through this fund. They include about 15 publications, all kinds of publications. A small Christian-oriented publication --

MR. LEHRER: These publications make application to this student group, and then they -- their applications are either accepted or denied, right?

MR. TAYLOR: Right. And irrespective of content. In general, it doesn't matter what your publication is about as long as -- as long as it's a bona fide publication, you qualify for the money. However, there is -- that doesn't apply to religious publications. The University's policy, which is enforced in the first instance by the student government and ultimately by the university, itself, is religious publications can't -- don't qualify because that would be an establishment of religion if we gave them money. So a religious publication called "Wide Awake," which is evangelical Christian in its orientation, applied for the money, was denied, filed a lawsuit, and lost all the way through the lower courts on the ground that it would be an establishment of religion for the university to run that religious activity. The Supreme Court today reversed that and said the First Amendment free speech clause requires that the speech by this religious organization be treated just like anybody else's speech under the facts of this case at least, and that they get the money just as they would if there were some other kind of a publication.

MR. LEHRER: So the overriding -- and that overrides the religion concern, right?

MR. TAYLOR: They --

MR. LEHRER: According to the majority.

MR. TAYLOR: The majority held that it was not an establishment of religion, didn't violate separation of church and state to provide that funding on an unusual basis. In that regard, they overruled the lower courts and they trimmed a little bit some of their precedents, or some would say they trimmed them a lot, because there's a long line of Supreme Court precedent that says direct government funding of religious activity is a core violation of the establishment clause. It violates separation of church and state.

MR. LEHRER: What are the potential ramifications of this decision? Is this a big deal?

MR. TAYLOR: It could be a big deal. The court didn't write it all that broadly, but it's a very significant step across the line of saying sometimes it's okay to give government money to fund religious activity. They didn't say exactly what kind of circumstances it would be in. And both Justice Kennedy, who wrote the majority opinion, and Justice O'Connor, who's an indispensible fifth vote, tends to be the person in the middle on these things, wrote a concurrent opinion, indicated that this doesn't mean we're opening the flood gates but certainly it gives people who support various forms of government aid to parochial schools.

MR. LEHRER: That's what I was thinking, that that would be the first candidate.

MR. TAYLOR: That will certainly fuel their -- put wind in their sails. In things like voucher plans, where any parent who wants to send his child to private school may qualify for government voucher, even if it's a parochial school, may well pass muster under this decision, but it's not clear they will, because it's written kind of narrowly.

MR. LEHRER: Narrowly, just this publication. Five to four again, right?

MR. TAYLOR: Same five to four breakdown that we had in the voting rights case and that we had in a lot of cases this term, including the big affirmative action case. It was Justice Kennedy this time writing for the more conservative five. He's deemed one of the more moderate members of the conservative five, joined by Justice O'Connor another fairly moderate Justice, and by the most conservative three, Chief Justice Rehnquist, Justice Scalia, and Justice Thomas. That was the majority.

MR. LEHRER: And the minority, Justice Souter has been in the -- in the minority -- I guess -- for want of a better term -- the liberal minority on these -- in these cases -- and in the one case, the six to three, the liberal majority, and of course, he was appointed by the same president that Justice Thomas was.

MR. TAYLOR: That's right. And Justice Souter, who was sort of known as the Stealth nominee when he was appointed because one reason he was chosen was nobody knew what he stood for, and John Sununu told -- whispered in the President's ear that he was okay on the conservative front --

MR. LEHRER: Because he was from New Hampshire, where Sununu was from?

MR. TAYLOR: Right. Well, he's turned out to be no conservative on most of the big ideologically split cases this term and in the past couple of years as well, he has sided with the liberals. Now, he's not a liberal in the same vein as Justice Brennan, now retired, or the late Justice Marshall, but he's certainly a liberal on the spectrum of this court.

MR. LEHRER: Yeah. Well, Stuart Taylor, you've done a good night's work for us here tonight, and thank you very much.

MR. TAYLOR: Thank you.

MR. LEHRER: See you again soon. RECAP

MS. FARNSWORTH: Again, the major stories of this Thursday, the Supreme Court ended its term with several major rulings, including one which declared minority-dominated congressional districts in Georgia unconstitutional. The shuttle Atlantis docked with the orbiting Russian space station Mir. And tonight the Senate passed the Republican plan to balance the budget in seven years. The House passed the same measure earlier in the day. Good night, Jim.

MR. LEHRER: Good night. Elizabeth. We'll see you tomorrow night with Shields & Gigot, among other persons and things. I'm Jim Lehrer. Thank you and good night.