Settling for a Boycott

NEGOTIATING a settlement out of court is a tried-and-true way to avoid a lengthy and expensive trial in civil cases. Through negotiations, litigants have been able to develop compromises acceptable to both parties, and avoid a definitive ruling on a complicated issue.

But now, because of the conservative shift in the Supreme Court, liberals are beginning to use out-of-court settlements as an alternative to losing cases dealing with constitutional issues.

After eight years of Ronald Reagan, the Court now consistently leans to the right on issues like abortion, affirmative action and pay equity. As a result, those who espouse a liberal view are likely to be defeated if their case ever makes it to the high court.

While out-of-court settlements may seem a second-rate solution to issues as important as constitutional ones, liberals should accept this new strategy as the only way to preserve vital rights, at least until the composition of the Supreme Court changes again.

ON the abortion issue, liberals are finding that some rights can be preserved by this new strategy.

In Illinois this week, parties in a case to be heard by the Supreme Court in December are attempting to negotiate a solution to their disagreement. The case centers around state regulations that require abortion clinics to meet strict and expensive standards.

Abortion rights groups in the past would not have considered settling for anything less than a victory in this case. Many clinics would be forced to close or raise their prices under the restrictions, and the first victims of these changes would be poor and rural women.

But now, pro-choice must compromise. The movement is willing to settle because it wants to keep the decision out of the hands of Justice Antonin Scalia, the Court's most outspoken foe of abortion. Scalia criticized the majority opinion in this summer's Webster case for not going far enough in overturning Roe v. Wade, which first recognized a constitutional right to abortion.

Jay Miller, an ACLU director who is coordinating the settlement, concedes that compromise might be the only realistic alternative for pro-choice groups. "The very fact that the Supreme Court agreed to hear the case means you have a chance of losing," he is reported as saying. "And you also lose control. You don't know where the Court is going to go with this."

The fact that both sides are willing to compromise says something about the issue of abortion. Attorney General Neil Hartigan, a democratic candidate for governor who has defended the clinic regulations, has been pressed by pro-choice groups to drop the case. It takes no political whiz to realize that if the Court used the Illinois case to legalize broad restrictions on access to abortion, Hartigan's hopes within the Democratic party are as good as over.

COURTS have also been predictably unreliable in pay equity cases. In California, a federal judge recently dismissed a California State Employees' Association's claim that jobs held mostly by women paid less than comparable jobs held by men. That case involved 60,000 workers. A similar case was dismissed in Michigan.

But defenders of pay equity say that grass roots movements have forced state legislatures to establish pay equity funds. Six states have already established equity programs, despite the courts' decisions.

THERE are, of course, serious problems with out-of-court settlements on constitutional cases. First, ad hoc settlements cannot guarantee a national solution to a problem. It may solve Illinois' abortion woes, or Michigan's gender discrimination case, but there will not be a national standard to protect such rights.

Second, liberals will find that settlements provide only a temporary and occasional solution to these problems. As time passes and judicial conservatism becomes ingrained in our legal system, acceptable settlements may become harder and harder to negotiate. If a company guilty of discriminatory hiring practices is threatened with a lawsuit, it might prefer to go to trial if the courts consistently rule against affirmative action.

UNITED States legal history is filled with cases in which the Court has guaranteed and expanded our rights to free association, free speech and privacy against those who would deny them. It is phenomenal that civil libertarians are now trying to avoid the Court at any cost.

But since the only lasting solutions--constitutional amendments or a more progressive Court--are not likely to happen in the near future, liberals will have to neutralize the Court's power. The next best alternative is to boycott the courts.