Ginsburg may help Supreme Court define itself as term begins today

October 04, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court, in search of a new judicial identity as its fourth new member in five years takes a seat, sets off today on a broad and potentially historic review of deep conflicts over civil rights.

In a sense, its new term already is historic: For the first time there will be two women on the bench. Justice Ruth Bader Ginsburg, who joined the court in August, is already at work behind the scenes.

No longer will Justice Sandra Day O'Connor, a member since 1981, be the lone female ever to sit among "the brethren."

"The thing I am most looking forward to is when someone in the audience looks up at the bench and says, 'Which one is Justice O'Connor?' " says Maureen Mahoney, a seasoned advocate before the court,

But Justice Ginsburg's potential impact is something that few legal analysts are willing to predict with confidence. They say they have no real idea what influence she will have on the court and whether it will be a different institution because of her. Part of that, they say, is due to the perception that the court has no clear-cut identity: It is not obvious what kind of institution she is joining.

Steven R. Shapiro, chief of the American Civil Liberties Union's Supreme Court activity, says, "This is a court that lacks, in many ways, a commanding ideology; it lacks, in many ways, a personality. It is a court primarily marked by shifting ideological coalitions."

Stuart M. Gerson, a former top official in President George Bush's Justice Department, echoes the thought: "This is a court that has no identity or coherent group dynamic."

Mixed signals

Justice Ginsburg herself has sent mixed signals, through her public career, about what kind of justice she will be. She made a national reputation as a pioneering ACLU lawyer working for equality of the sexes, seeking to expand constitutional protection of women. But as a federal appeals court judge for 13 years, she has been cautious, adamantly refusing to be as experimental as her liberal colleagues, voting comfortably with more conservative colleagues.

"She is a moderate in tone, cautious in approach," says the ACLU's Mr. Shapiro.

Former Bush administration aide Mr. Gerson sees her as a scholarly judge who will emerge as a "careful constitutional evolutionist." He and others suggested she will be comfortable working with Justice David H. Souter as he emerges further as a leader of the court's moderate center -- a bloc that also includes Justice O'Connor and, sometimes, Justice Anthony M. Kennedy.

Justice Ginsburg's views on civil rights issues, which so far dominate the significant new cases up this term, will be tested right away. As the court starts hearing cases, the justices will plunge immediately into heavy controversy over civil rights.

Two of the first day's three cases involve voting rights issues, and they may show whether the court will cut back on legal efforts to increase the political strength of blacks and other minority groups.

It sent a signal in that direction in a decision at the close of the last term in a North Carolina case. In that ruling, the court began raising serious constitutional doubts about race-based redistricting plans; such plans exist for scores of legislative districts across the country.

Mark Tushnet, a Georgetown University law professor, says the court has "set out on a course [on political rights for minority groups] without knowing where it's going to end up," a course that he speculates might actually end with nullifying the federal Voting Rights Act itself.

In a series of pre-term briefings by scholars and lawyers here, the potential threat from the court to minority rights in the political arena was mentioned over and over again.

Voting rights in peril?

For example, Laughlin McDonald, an ACLU leader based in Atlanta and a specialist on voting rights disputes, says, "Our concern is that we are really in the midst of a substantial backlash in the area of voting rights," and last term's decision "cast shadows across" all new voting rights cases reaching the court. He said lower courts already have begun to be more skeptical about race-based election law in the wake of the latest court ruling.

But voting rights is but one part of the court's rights caseload in the new term. By coincidence, some of the cases seem tailored to serve as tests of Justice Ginsburg's current views on women's rights.

As a lawyer, Ms. Ginsburg was involved in several cases over the rights of women to serve on juries; she won one such case before the Supreme Court itself. Now, a Georgia case tests the constitutionality of lawyers' efforts to assure that fewer women, or men, get seated on juries. That, some analysts say, may lead the court to spell out a new constitutional standard for sex equality.

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