Court's Balance Ready To Be Tipped

July 03, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- In the Supreme Court's last two sittings of its just-ended term, the justices sent what amounted to an implied message to their likely new colleague, Judge Stephen G. Breyer: Here is the short list of what divides us deeply, the issues you could influence the most.

Religious freedom, freedom of speech, and the right to vote -- areas of controversy that split the current court into 5-4 or at

least 6-3 factions -- figured in the spate of important rulings that the justices had saved for last.

In its closing days, the court:

* Struck down a form of public aid to religion -- the creation of a special public-school district for one religious sect -- but revealed that its commitment to keeping government and religion widely separated was growing shakier. Judge Breyer could have a major effect in tilting the court on such questions

* Upheld some government regulation of cable television, but by the narrowest of margins, leaving Judge Breyer in a position to cast the decisive fifth vote when such issues arise anew.

* Allowed federal judges to curb some of the more disruptive actions of anti-abortion blockaders outside clinics, but did so on such a narrow basis that future test cases -- sure to arise -- could let Judge Breyer tip the balance.

* Revealed that it continues to be skeptical about using race as a factor in drawing up redistricting plans, and hinted that it one day may apply the Constitution's bar to racism to stop such gerrymandering -- with Judge Breyer again in a potentially decisive posture.

While those conflict-producing areas drew much of the attention as the court prepared to recess for the summer, the less conspicuous reality about the last term was that the court was able to unite, or come close to uniting, much of the time.

Among the 12 most important rulings of the term, the court was unanimous on six, and had a single dissenter on one. On only five major decisions were there three or four dissenters.

If the count is widened to take in most of the remaining decisions of significance, the court was unanimous, or had no more than two dissenters, in slightly more than half the cases.

In search of identity

The court appeared to be doing its work without displaying the strong traits of either a conservative or liberal tribunal. "This is a court that is still searching for its identity," said Steven R. Shapiro, legal director of the American Civil Liberties Union. "The lack of a clearly dominant ideology produces shifting coalitions from case to case," creating a court "cautious about its role and restrained in its rhetoric."

It is still in flux at least partly because of the recent high turnover of its membership. It has seen two-thirds of its seats change hands in eight years, forcing frequent realignments that seek to draw in newer members.

When Justice Harry A. Blackmun's formal retirement date arrives in a few weeks, after the Senate's expected approval of nominee Breyer, the court will have lost its sixth justice since 1986, and its seventh since 1981.

Justice Sandra Day O'Connor, President Ronald Reagan's first nominee, joined the court just 13 years ago but already has risen to third in seniority -- and to the role of one of the leaders of the court's controlling bloc of centrists or moderates.

Arranging the shifting alliances was somewhat easier for the court in the past term as it cut back on its workload: at the close of the term Friday, it had issued 84 rulings, the lowest total since at least 1961. Although members of the court say privately that they are not deliberately picking fewer cases to decide, they are passing up many that almost surely would have been taken on by some past courts.

As Justice Ruth Bader Ginsburg worked through her first term, it appeared that her presence was strengthening the court's influential bloc of moderates.

Alan Slobodin, president of the Washington Legal Foundation, a conservative legal research and advocacy group, said the court showed last term that it now has "this gigantic middle" -- a centrist bloc made up of six justices, usually leaving out Justice Blackmun on the left and Justices Antonin Scalia and Clarence Thomas on the right.

"[Chief Justice William H.] Rehnquist was not really a member of the conservative wing" this term, as he had often been earlier, Mr. Slobodin added. "Even Rehnquist was sort of floating."

'Giant middle'

He predicted that Judge Breyer, as a new justice, will "fit right in with that giant middle," and make it even larger by replacing Justice Blackmun.

Joining Judge Breyer in the middle would be Justices Ginsburg, O'Connor, Anthony M. Kennedy, David H. Souter and John Paul Stevens -- and possibly Chief Justice Rehnquist at least some of the time.

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