Court's workload low, but cases were significant Decisions on gays, women's rights could depend on election

July 03, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court has left town for the summer after looking into what the constitutional future might hold, and deciding to turn some of it into reality now.

The names figuring in that speculation primarily are Chief

Justice William H. Rehnquist, who will be 72 on the eve of the court's new term in October, and Justice John Paul Stevens, who is 76. To a lesser degree, there has been speculation about the retirement of Justice Sandra Day O'Connor, who is 66.

As a result, activist groups are seeking to make a campaign issue out of the court's future.

Liberals vs. conservatives

Elliot Mincberg, legal director of the liberal People for the American Way, said this week: "This term emphasizes that the November elections are crucial to the future composition of the court. The number of close decisions and the critical role played by Justices O'Connor and [Anthony M.] Kennedy show that a new justice or two could tip the ideological balance."

Ralph Reed, executive director of the conservative Christian Coalition, thinks so, too. Last month on a Public Broadcasting System program, he praised Dole's promise to appoint justices who "are not going to legislate a liberal agenda from the bench." By contrast, Reed said, a re-elected Clinton would "probably appoint at least two, maybe three Supreme Court justices" who would not satisfy conservative Christians.

A delicate balance

The court's balance of ideologies is close: Neither the more conservative justices nor the more liberal ones could produce a majority in 5-4 rulings without attracting "centrist" justices' support -- meaning O'Connor or Kennedy.

Thomas C. Goldstein, a law lecturer at the American University, noted in his annual compilation of term data: "No 5-4 majority came together this year without one or both of them." He noted that the court split 5-4 in 16 rulings and that, while those decisions brought eight different combinations of justices together in a majority, one or both of the centrist justices joined in every one.

"While Justice O'Connor has been the court's key swing vote for several terms," he said, "this year we saw Justice Kennedy continue his move to the court's center."

By contrast, Goldstein said, the court's most liberal and most conservative members have been left to dissent, largely in isolation. Stevens, perhaps the most liberal, dissented alone five times, and the two most conservative, Justices Antonin Scalia and Clarence Thomas, each filed solitary dissents twice; no other justice dissented alone.

He also noted that O'Connor and Kennedy helped bolster the majorities in the two most visible landmark rulings. They were part of a 6-3 majority that struck down a Colorado state constitutional amendment that barred legal protection for homosexuals. They also joined a 7-1 majority that nullified the decades-long tradition of excluding women from the Virginia Military Institute.

Liberal observers took some comfort from those margins. The American Civil Liberties Union's legal director, Steven R. Shapiro, said: "The fact that both these cases were won with solid majorities represents one of the most significant developments in equal protection law in many years." The term, he said, would "likely be most remembered" for those two decisions.

But Shapiro also lamented that the just-ended term showed the court growing more skeptical about using race as a deciding factor in drawing up voting districts, continuing a trend that began in 1993.

He also complained that the court took a stricter approach to drug crimes, upholding broad government powers to seize property related to drug offenses, and showing little interest in arguments that drug laws are enforced in a discriminatory way against black suspects.

Scalia dissents

Scalia, one of the court's most conservative members and a strong internal critic of what he takes to be its current trend, warned last week that "the people should not be deceived" by the majority's assurances in the gay rights and women's rights cases that it was merely taking limited new steps.

Scalia remarked bitterly in one of his final dissents: "While the present court sits, a major, undemocratic restructuring of our national institutions and mores is constantly in progress. Day by day, case by case, [the court] is busy designing a Constitution for a country I do not recognize."

If Scalia is right, and the court has grown more activist in creating new law where none existed, it seemed less active in arranging its workload. It finished the term with only 75 rulings -- the fewest since the term that ended in 1954, when there were 65. The court controls the number of cases it agrees to decide.

But this term, the court appeared to take longer to reach its decisions. For only the second time in Rehnquist's decade as chief justice, the court sat beyond the end of June. The only other time it did that in the past 10 terms was in 1989, when it had a total of 133 decisions.

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