Reshaped Supreme Court to review historic stands

October 01, 1990|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court walks through its red velvet curtains today into a new era -- crossing a historic divide marked by a profound change in its membership and by a choice of whether to shut down, in whole or part, two of America's boldest constitutional experiments.

Because of the switch in membership, there is a realistic chance -- the first in history -- that the court now assembling could curtail drastically the power of courts to deal with abortion and school desegregation, leaving those problems mainly to state and local officials.

That looms as a prospect largely because of the unexpected retirement in July of Justice William J. Brennan Jr., the anchor of the court's liberal bloc, and his imminent replacement by a more conservative jurist, New Hampshire Judge David H. Souter.

Doubts about the future of basic constitutional rulings, on abortion and civil rights in general, are what lay behind the fractured and now apparently doomed attempt by liberal groups to stop Judge Souter from gaining Senate approval to succeed Justice Brennan. The Senate is expected to approve his nomination tomorrow, and he will join the court within a week.

Judge Souter's first term could show vividly how different the court will be without Justice Brennan.

Thirty-six years after the court banned segregated schools in the case of Brown vs. Board of Education, the continuing force of that and subsequent desegregation rulings will be deeply in doubt in the new term just opening.

School districts anxious to regain full control of their schools and to get out from under busing orders want the court to say that they have done enough. (In fact, the Brown case itself -- the one that started it all -- is back for a new look by the court amid a quartet of cases the justices have seen before.)

And, 17 years after the court created a constitutional right to abortion in the case of Roe vs. Wade, that decision's very existence is in the deepest of doubt. The Bush administration and other abortion foes are pressing the court anew to leave that angry controversy to political forces.

During Senate hearings, Judge Souter seemed to embrace fully the Brown decision. But he was not asked about his views on whether the time had come to lift its mandate from school boards that have carried out desegregation orders but that still have schools where some black pupils never see white pupils, and vice versa.

Judge Souter was asked repeatedly by senators for his views on abortion, but he avoided giving even hints of where he stands -- even from a personal, moral point of view.

Just how crucial Judge Souter's vote may be on the future of school desegregation could become clear very early in the Supreme Court's new term.

Tomorrow, before Judge Souter joins the court, the eight sitting justices will hear a test case from Oklahoma City that may go far to determine whether court desegregation orders are to be lifted across the country. The school board there insists that it has done all it was obliged to do legally and that any one-race schools still in existence are not its fault, nor its obligation to cure.

If the eight justices are split 4-4 after hearing that case, the court would be expected to reset the case for another hearing after Judge Souter has taken his seat; in that situation, it would be plain that his vote would be decisive. (Judge Souter cannot vote, after he joins the court, on cases heard before he got there, unless a new hearing is held.)

Although Judge Souter is likely to win Senate approval later in the day tomorrow, he is not expected to join the court in time for any of the first week's hearings. He probably will be on hand for those in the second week, however.

If approved, the new justice will get his first chance to vote on an abortion case late this month, when the court takes up a constitutional challenge to federal government rules forbidding pregnancy clinics that get federal funds from telling their patients that abortion is an option.

Although that case may not require the court to say whether the Roe vs. Wade decision is to be overruled, cases that seem sure to force the court to confront that very issue are working their way toward the court. They reach the court later in the current term.

The public, however, may not have to wait long for a glimpse of where Judge Souter stands on the controversial question of legal protection for fetuses -- an issue that is related to the overall abortion issue.

One of the first round of cases Judge Souter is expected to hear as a justice is a test of a factory's legal right to bar women workers of child-bearing age from jobs that would expose them to toxic substances, in order to protect their potential future fetuses from health damage.

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