Bloc of Three Justices Looms Large as Term Begins

October 04, 1992|By LYLE DENNISTON

Washington -- Well aware that its future is at stake in th presidential campaign, but acting as if that didn't matter, the Supreme Court returns to its own labors tomorrow in a brightly refurbished courtroom with a new bloc of three justices poised to take more control.

Facing, as usual, a tough docket that will test seriously its ideas, its instincts and its mood, the court will be something of a sideshow in Washington as the four weeks of the election campaign wind down.

But on opening day tomorrow and in its first week of hearings in the new term, it may be very visible as it again tells the American public more about its attitude on the angry legal, political and moral question of abortion.

Abortion is a proxy for the significant shifts of allegiances and power that are going on within the court these days. And yet, while the abortion controversy is central to the court's work and is likely to keep coming up in one way or another throughout the term, its high visibility tends to obscure much of the rest of the justices' work.

Beyond what the court does on abortion, its rulings on ties between government and religion, state power to carry out Death Row executions, the scope of free speech rights, the rights (or lack of them) of prison inmates and crime suspects, all contribute to the present court's image. And all of those controversies are back again in new forms in the term just opening.

The court's overall image, as perceived by anyone who pays even fairly close attention to it, is of a thoroughly conservative tribunal. The debate among court observers, though, is over just how conservative it is.

The American Civil Liberties Union, a thoroughly liberal legal advocacy group, is deeply troubled over what it sees: a "radical" conservatism that is "increasingly hostile to individual rights and racial justice," as ACLU legal director John A. Powell puts it.

His colleague, attorney James E. Ferguson II, said the other day: "Twenty-five years ago, we looked forward to the opening of each term of the Supreme Court, and asked ourselves, 'How many gains are we going to make?' It is just the opposite now: we look forward to the opening of the Supreme Court term and ask ourselves, 'What can we hope not to lose? What can we hope to hold onto?' "

The ACLU, indeed, seems to be in the midst of an organized campaign to erase the perception of the court as moderate -- a view that appears to be fed by the emergence of a trio of "centrist" justices who seem on the threshold of dominance: Anthony M. Kennedy, Sandra Day O'Connor and David H. Souter.

A "centrist" justice is, in much-oversimplified terms, someone who avoids the extremes of thought and activism. That begins to explain the approach of the Kennedy-O'Connor-Souter trio (or, as some less respectful observers label them, the "Gang of Three"), but it does not go far to explain what the court genuinely is like these days.

The court's major decisions, it is true, turn out more often than not to be decidedly conservative -- but less so than if they were written routinely by, say, Chief Justice William H. Rehnquist, and much less so than if written by Justices Antonin Scalia and his newfound "extra vote," Justice Clarence Thomas.

What is apparent now is that there is more than one current of conservatism flowing through the marbled corridors, the differences among the conservative justices are deepening, and the court as a result is becoming less and less predictable.

As Terry Eastland of the National Legal Center in the Public Interest, a conservative legal think tank, commented recently: "Numerically, this is a conservative court, but there is a lack of any unifying judicial philosophy."

Adds Bruce J. Ennis, a Washington attorney and longtime advocate before the court: "It would be a mistake to think of the conservative justices . . . as sharing a single conservative philosophy." The justices' varying conservative ideas, he suggests, "are often in tension with each other."

What most observers suggest is most conspicuous about this court is that the particular strain of conservatism most likely to dictate outcomes is that of the Kennedy-O'Connor-Souter bloc. They are among the court's most cautious members, especially when it comes to throwing out controversial prior decisions (no matter how liberal those earlier rulings may have been).

As the government's top advocate in the court, Solicitor General Kenneth W. Starr, remarked last month: "These [three] are not Samsons, trying to bring down the pillars of precedent." They are not "given to broad principles" either, he adds, because the court is controlled now by what he calls a "contextualist" approach: take each major case on its own facts and its own law.

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