On high court, Ginsburg could have pivotal role New justice may end conservative trend

June 30, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court's just-finished term brought a steady march toward the conservative side, posing a challenge to a new justice -- nominee Ruth Bader Ginsburg -- to join the trend or try to change it.

If Judge Ginsburg, President Clinton's choice to replace retired Justice Byron R. White, meets the expectations of White House aides, the court could be in for a noticeable shift in direction on some of the more important cases almost from the start.

The court splits 5-4 often enough on major cases that a single switch can and does make a difference. Justice White had a deciding vote with some frequency in his 31 years -- and during the term that closed Monday.

That term showed a tribunal divided deeply and often very emotionally on a wide array of major issues, splitting 5-4 in one of the important rulings back in January as well as in one on the closing day. The first withheld federal civil rights protection from abortion clinics facing anti-abortion blockades, and the second raised a major constitutional threat to racial gerrymandering to create minority-dominated districts. Justice White was in the majority in the first and in dissent in the second.

Resurgent conservatism

Both of those rulings, like many other key decisions, revealed the court's resurgent conservatism over the nine-month term, but they also showed that the conservatives' control of outcomes was often quite uncertain, making it possible for a single justice's vote to emerge as decisive.

Of 14 key decisions on which the court split 5-4, 12 were controlled by the court's most conservative justices and only two by the liberals and centrists -- and the results matched those combinations.

Justice White, a conservative on most issues, was part of a five-member majority in eight of those 14 -- an indication that the outcome at least in those could have been different with a more moderate justice, like Judge Ginsburg, on the court. Those rulings ranged over subjects from prisoners' rights to pornography.

On the other hand, Judge Ginsburg as a federal appeals jurist has voted quite often with her most conservative colleagues on the U.S. Circuit Court of Appeals, and that might not change markedly if she wins Senate approval this summer and becomes a justice.

Senate Judiciary Committee hearings on her nomination, set to start in three weeks, may begin to give some clues about her views -- beyond what she has written in judicial opinions -- and may reveal whether she might be a different judge on the Supreme Court than she has been on a lower-ranking court with less decision-making discretion.

Some of her friends, in fact, have suggested that she would feel liberated as a justice and that the result would be a re-emergence of the strong civil rights instincts she had as an American Civil Liberties Union lawyer before becoming a judge.

From the day she takes a seat as the court's junior justice, she almost certainly will be the object of other justices' attempts at persuasion, seeking to enlist her vote in the more significant of the 100 or so cases the court faces each term.

Overall, in the nine-month term just completed, the court decided 107 cases. But only 20 of those could be considered major or pathmaking rulings. Of those 20, the final outcome in 13 was one that would please the court's conservative following, while only seven would gladden the hearts of its moderate-to-liberal audience.

Center's support needed

It appeared, as it had the year before, that the most important cases could be won only if the majority approach could claim the support of one or more of the court's three centrists -- Justices Anthony M. Kennedy, Sandra Day O'Connor and David H. Souter. But Justice Kennedy seemed to be voting more often for conservative results than he had in recent terms.

Of the 20 most significant rulings, Justice Kennedy was in the majority 19 times. His lone dissent in those cases came on the final day, and he felt strongly enough about that to take the rare step of reading aloud from his dissent when the ruling was announced. It was a 5-4 decision finding no violation of First Amendment rights of expression for the government to seize an entire chain of adult bookstores and film shops and to destroy more than 100,000 items -- seven of which had been ruled obscene.

The court's three most conservative members also cast their votes as part of a majority often in major cases: Justice Antonin Scalia, 18 times, Justice Clarence Thomas, 17, and Chief Justice William H. Rehnquist, 16.

Justice Souter, by contrast, appeared to be making alliances more often with the court's most liberal justices, Harry A. Blackmun and John Paul Stevens. That, too, was reflected in the voting patterns on the key cases: Justice Souter and Justice Stevens were with the majority in only 11 of the major rulings, Justice Blackmun only 10.

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