Bloc of Three Justices Looms Large as Term Begins

THE BALTIMORE SUN

Washington -- Well aware that its future is at stake in th presidential campaign, but acting as if that didn't matter, the Supreme Court returns to its own labors tomorrow in a brightly refurbished courtroom with a new bloc of three justices poised to take more control.

Facing, as usual, a tough docket that will test seriously its ideas, its instincts and its mood, the court will be something of a sideshow in Washington as the four weeks of the election campaign wind down.

But on opening day tomorrow and in its first week of hearings in the new term, it may be very visible as it again tells the American public more about its attitude on the angry legal, political and moral question of abortion.

Abortion is a proxy for the significant shifts of allegiances and power that are going on within the court these days. And yet, while the abortion controversy is central to the court's work and is likely to keep coming up in one way or another throughout the term, its high visibility tends to obscure much of the rest of the justices' work.

Beyond what the court does on abortion, its rulings on ties between government and religion, state power to carry out Death Row executions, the scope of free speech rights, the rights (or lack of them) of prison inmates and crime suspects, all contribute to the present court's image. And all of those controversies are back again in new forms in the term just opening.

The court's overall image, as perceived by anyone who pays even fairly close attention to it, is of a thoroughly conservative tribunal. The debate among court observers, though, is over just how conservative it is.

The American Civil Liberties Union, a thoroughly liberal legal advocacy group, is deeply troubled over what it sees: a "radical" conservatism that is "increasingly hostile to individual rights and racial justice," as ACLU legal director John A. Powell puts it.

His colleague, attorney James E. Ferguson II, said the other day: "Twenty-five years ago, we looked forward to the opening of each term of the Supreme Court, and asked ourselves, 'How many gains are we going to make?' It is just the opposite now: we look forward to the opening of the Supreme Court term and ask ourselves, 'What can we hope not to lose? What can we hope to hold onto?' "

The ACLU, indeed, seems to be in the midst of an organized campaign to erase the perception of the court as moderate -- a view that appears to be fed by the emergence of a trio of "centrist" justices who seem on the threshold of dominance: Anthony M. Kennedy, Sandra Day O'Connor and David H. Souter.

A "centrist" justice is, in much-oversimplified terms, someone who avoids the extremes of thought and activism. That begins to explain the approach of the Kennedy-O'Connor-Souter trio (or, as some less respectful observers label them, the "Gang of Three"), but it does not go far to explain what the court genuinely is like these days.

The court's major decisions, it is true, turn out more often than not to be decidedly conservative -- but less so than if they were written routinely by, say, Chief Justice William H. Rehnquist, and much less so than if written by Justices Antonin Scalia and his newfound "extra vote," Justice Clarence Thomas.

What is apparent now is that there is more than one current of conservatism flowing through the marbled corridors, the differences among the conservative justices are deepening, and the court as a result is becoming less and less predictable.

As Terry Eastland of the National Legal Center in the Public Interest, a conservative legal think tank, commented recently: "Numerically, this is a conservative court, but there is a lack of any unifying judicial philosophy."

Adds Bruce J. Ennis, a Washington attorney and longtime advocate before the court: "It would be a mistake to think of the conservative justices . . . as sharing a single conservative philosophy." The justices' varying conservative ideas, he suggests, "are often in tension with each other."

What most observers suggest is most conspicuous about this court is that the particular strain of conservatism most likely to dictate outcomes is that of the Kennedy-O'Connor-Souter bloc. They are among the court's most cautious members, especially when it comes to throwing out controversial prior decisions (no matter how liberal those earlier rulings may have been).

As the government's top advocate in the court, Solicitor General Kenneth W. Starr, remarked last month: "These [three] are not Samsons, trying to bring down the pillars of precedent." They are not "given to broad principles" either, he adds, because the court is controlled now by what he calls a "contextualist" approach: take each major case on its own facts and its own law.

The definition of the current court as the "Kennedy-O'Connor-Souter Court" is founded, primarily, upon their jointly authored opinion last term in the abortion rights decision. With the court supposedly on the brink of overruling Roe vs. Wade altogether, those three pulled back and joined with the court's two liberal justices, Harry A. Blackmun (the author of Roe) and John Paul Stevens to reaffirm -- but only in part -- the right of women to seek abortions.

While the three "centrist" justices also were the key to a cautious ruling that kept intact (for the time being) the court's present constitutional formula for judging when government gets too close to religion, their votes and their actions on abortion rights in June clearly were the defining opportunity for them -- and for the present court's image.

Abortion takes on a special importance again in the court's new term, and here is why:

* The court split 5-4 on its abortion ruling at the end of June, and thus a single vote could make a total difference to the future of American women's right to abortion. That fact puts special emphasis on the voters' choice four weeks from now of a president who will control the naming of one or two -- and probably more -- new justices on the court in the next few years.

* The abortion issue, and last term's decision on it, brought into existence and out into the open the Kennedy-O'Connor-Souter bloc as a quite solid, mutually reinforcing judicial team. If they vote together on abortion (or anything else of significance), it is now clear, they almost surely control the outcome, no matter how widely split the other justices are.

* And the abortion issue, more than any other, tests the court on what it thinks of itself as an institution, what role it sees for itself in the governmental life of the nation and what basic principles of judging it is going to follow.

Last week, as the justices met in their first private conference of the new term, they once again were face to face with abortion rights. Before them, among the 1,476 new cases that had piled up during the court's summer recess, was an appeal by the governor of the Territory of Guam, pleading for permission to enforce the nation's most restrictive law against abortion.

Guam's law is the most sweeping of a series of new legislative attempts to ban abortion in almost all circumstances, by making it a crime and by allowing very few exceptions. Those laws were passed with the explicit hope of forcing the court to overrule Roe vs. Wade.

But, since the court refused to overturn Roe, the Guam case no longer serves as a test of the 1973 decision's vitality; rather, it raises the issue of whether the state legislatures can make abortion a crime at all, or whether the most that they may do is to try to limit it by regulating it.

The court may simply bypass the Guam appeal, but even that would be a sign that a majority of the justices is unwilling to reopen the abortion rights issue just now.

That, however, will not spare the court from dealing with the controversy this term. Other abortion cases are on their way onto the court's docket; one from Mississippi arrived at the courthouse late last week, and others are developing in the lower courts.

And, on the court's second day of hearings in the new term, the day will start with a case from Alexandria, Va., testing whether federal civil rights law can be used to stop anti-abortion groups like "Operation Rescue" from blockading abortion clinics. That case does not involve the constitutional right to abortion; only the meaning of a post-Civil War civil rights law is at stake.

But, the lawyer for the abortion clinics will make a plea that last term's decision reaffirming abortion rights adds emphasis to the need to protect women's access to clinics by making blockades a violation of women's rights.

The Bush administration, as has been its pattern for the past four years, has taken sides with abortion opponents in that case, arguing that policing of abortion clinic sidewalks during blockades should be left to state and local police under state trespass laws.

Although the court did not take the administration's advice on basic abortion rights (a repeated plea to overrule Roe vs. Wade), the government ordinarily does have quite strong influence on the court.

A conservative Justice Department and solicitor general's office, indeed, have been factors in maintaining the conservatism of the current court.

But the kind of influence the government has in the court might well change, at least in degree, should the Democrats retake the White House next month. With the presidency comes control over the government's legal advocacy arms.

And, as the court continues to reduce its overall caseload (so as to have more time to decide), the role of the Justice Department and the solicitor general may increase. For example, among the new term's 65 cases already accepted for review, the solicitor general is taking part, in one advocacy role or another, in 48 of them.

So if there is a change in the White House, a conservative court (and it will remain that, perhaps for some time beyond this new term) may well be hearing much different pleas -- a factor that, in reality, could simply reinforce the centrist power of Justices Kennedy, O'Connor and Souter.

Lyle Denniston covers the Supreme Court and legal issues from the Washington bureau of The Baltimore Sun.

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