High court's recent rulings, future are campaign issues

Parties covet chance to nominate justices, influence direction

Direction of high court is campaign issue

July 02, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

With the nation approaching an election that could shape the future of the Supreme Court, an activist court has been flexing its authority to the left and to the right, striking down a host of laws and government policies.

The term that ended last week had "a remarkably large number of big, important cases," said Miguel A. Estrada, a Washington lawyer and experienced Supreme Court advocate. The justices, he said, dealt with "all of the hot-button issues."

Those issues - abortion, school prayer, gay rights, crime - are the ones that help keep the nation's culture wars going, and they are the ones likely to figure in this year's presidential and congressional campaigns.

The candidates almost surely will be talking at length about the court's rulings in cases involving those controversies, and that debate is likely to focus on the next president's power to nominate Supreme Court justices.

With widespread speculation that some justices will be leaving the court in the next few years, it has become commonplace to talk about several seats becoming a prize for the party winning the White House.

And, with the court often split 5-4, new justices could begin to move the court in different directions.

During its just-completed term, the court was divided 5-4 in 21 of 74 decisions, or 28 percent, the highest number and the largest percentage in almost a decade, said Thomas C. Goldstein, a Washington lawyer who tracks the court's work closely.

President Clinton, noting that the court's latest decision upholding abortion rights was one of those 5-4 decisions, said, "In the next four years, there will be somewhere between two and four appointments to the Supreme Court."

Abortion rights, he said, are "very much in the balance."

Rep. J. C. Watts, an Oklahoman who heads the House Republican Conference, commented about the abortion ruling: "I look forward to the day when a Republican president will replace retiring liberals with justices who will truthfully interpret the Constitution rather than impose their activist views against states and the people."

A broader view on the court's future as a campaign issue was expressed by the Institute for Justice, a conservative legal advocacy group that takes part in many major Supreme Court cases.

"The results of the upcoming election and the appointments made by the next president will largely determine which direction the court will take," said Chip Mellor, the institute's president.

`Top of the agenda'

"So, while there are many important issues at stake, the topic of Supreme Court appointments deserves to be at the top of the agenda."

For weeks, People for the American Way, a liberal advocacy group, has reacted to virtually every major decision emerging from the court by reiterating the importance of the seats that could become vacant for the next president to fill.

Most of the speculation about voluntary departures from the court has centered on Chief Justice William H. Rehnquist, who will be 76 in October, Justice Sandra Day O'Connor, 70, and Justice John Paul Stevens, 80.

They are generally arrayed across the philosophical spectrum: Rehnquist a conservative, O'Connor a moderate, Stevens a liberal.

None has given any indication of plans to retire, but that has not quieted the speculation.

During the past term, Rehnquist and O'Connor voted together in nearly 90 percent of the decisions, according to Goldstein's statistics. In the 5-4 cases, O'Connor was in the majority 18 times out of 21, Rehnquist 16 times.

Stevens voted with Rehnquist less than half the time but voted somewhat more often than that with O'Connor. He was in the majority in five of the 5-4 decisions.

The court's most conservative members, along with moderates O'Connor and Justice Anthony M. Kennedy, made up the majority in two-thirds of the 5-4 rulings. Those five included Rehnquist, O'Connor, Kennedy and conservative Justices Antonin Scalia and Clarence Thomas.

If two or more of those justices leave the court in the next few years, those nominated by the next president to replace them could be casting decisive votes in future cases.

With the election four months away, the court was in the headlines repeatedly as the past term wound down, a result of the court's readiness, sometimes eagerness, to decide some of the most controversial social issues.

Liberal surprises

For a court that for years has had a reputation of being deeply conservative - a reputation it kept intact in many of the past term's 5-4 rulings - it did provide some liberal surprises.

"The conventional wisdom," said John G. Roberts Jr., a Washington attorney active before the court, "is that this is a conservative court. We have to take that more skeptically.

"On the three issues that the public was most interested in - school prayer, abortion and Miranda rights - the conservatives lost on all.

"I don't know how you can call a court conservative when it upholds the Playboy Channel's right to broadcast its kind of programs."

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