'91-2 Court Good but Not Great


Washington. -- The Supreme Court folded up shop on June 29, leaving behind a remarkably unremarkable record for the 1991 term. Of the 108 opinions handed down, only one could be scored as much of a surprise. Otherwise it was mostly the same old fives and fours.

The surprise, at least to some observers, came on June 24 in a case involving prayers at public school commencements. It was a close call.

In times past the court has found nothing unconstitutional in prayers by legislative chaplains. The court's own sessions are opened with a ritual invocation by the marshal. There was some speculation that Justices Souter and Kennedy, and perhaps Justice O'Connor as well, would find nothing unconstitutional in the brief and non-sectarian prayers at the Providence, R.I., middle school.

As it turned out, Justice Kennedy wrote a firm opinion finding that school officials were "pervasively" involved in a religious activity. Justice Souter startled everyone with his crisp assertion that the prayers were "flatly unconstitutional." Justice O'Connor not only joined the court's opinion but also signed on to a $H concurring opinion by Justice Blackmun.

I thought the Providence case was wrongly decided. The facts were far removed from previous cases involving daily readings from the Bible or daily recitation of an official prayer. My guess was that a majority would regard the school ceremony as just that, a ceremony involving no real participation by a captive audience. I guessed wrong.

Since the term's end, much commentary has focused upon the supposed new triumvirate of Kennedy, O'Connor and Souter. It strikes me as a bit premature to see them as a controlling "moderate middle." The court divided 5-4 in 16 cases. The three justices were together on only five of them. If this is a new bloc, it is not yet a cohesive bloc.

The high court is a court in transition. The past six years have marked the retirement of Chief Justice Burger after 17 years on the bench, Justice Brennan (34 years), Justice Marshall (24 years) and Justice Powell (15 years). That adds up to 90 years of institutional memory and experience.

In their places we have Justices Kennedy, Scalia, Souter and Thomas. Justice Scalia by this time has firmly established his position on the predictable right with Chief Justice Rehnquist, but the others cannot yet be tidily labeled.

The term reconfirmed a couple of eternal verities. The first is that justices will not stay tied to the philosophy of the presidents who appoint them. Witness Justice Souter. The second is that contrary to the pretty myth, ours is in truth a government of men and not of laws.

Justice Blackmun, the most untied justice in the court's history, gave the game away in the Pennsylvania abortion case. He expressed his fear that on his death or retirement, a right-to-life justice would be appointed in his stead. With such a replacement, the constitutional doctrines of Roe v. Wade would be swept away -- not because the Constitution had changed, but because the judges had.

The term saw no records set. The 108 opinions compared to 118 a year ago. In this century the court's output has ranged from 65 opinions in 1953 to 230 in 1911. As a measure of the court's workload, the figures are meaningless. The justices spend as much time on the cases they decline as they spend on the cases they review.

One statistic is of continuing concern. Members of the court fritter away a vast deal of time and intellectual energy in writing dissenting and concurring opinions. Often their judgments are so splintered that lower court judges shake their heads in disbelief.

In one entirely typical case (it happened to involve the sentencing of juveniles), Justice Souter announced the judgment the court. Six members agreed in part. Justice Scalia filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed his own separate concurrence. Justice O'Connor wrote a dissent in which Justice Blackmun joined.

The court regularly serves up such scrambled eggs. The term saw 87 dissenting opinions and 70 concurring opinions. Justices Stevens and Blackmun felt such an irresistible urge to write that they churned out 91 opinions between them, but only 22 of these were opinions for the court.

All in all, a good term but not a great term. The court erected no landmarks, but it toppled none either. The country should contentedly settle for that.

James J. Kilpatrick is a syndicated columnist.

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