Voting control shifts to right on high court

THE BALTIMORE SUN

WASHINGTON -- With a combination of power and solidarity seldom seen on the modern Supreme Court, the five most conservative justices swept through the just-ended term, leaving their wake a major overhaul of the nation's law.

In nine months of activity rivaling the conservative intensity shown since January by the Republican-led Congress just across the street, the five justices who held voting control at the court chose to exercise it often, freely and boldly.

Dramatic constitutional change came regularly, right up through Thursday, when the court finished in a flourish and left town for the summer. This was the work primarily of Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

Just as conservatives in Congress this year have moved energetically to roll back decades of liberal social legislation, the court's conservatives frequently cast their votes together to roll back and even to cast aside liberal constitutional precedents.

Mark Tushnet, a Georgetown University law professor, said the court's term amounted to "a repudiation of post-New Deal constitutional law: that it is constitutionally permissible for government to act to alter background social conditions. There is a lot to indicate that the majority doesn't agree with that anymore."

The effect of the conservative trends during the term: a major curtailment of civil rights precedents, especially those in favor of "affirmative action" programs and race-based legislative redistricting.

Holding together on the other side of the high court, with equal fervor and commitment, were its more liberal members -- Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.

To some observers, the conservatives' solidarity -- unusual in a court that often scatters in varied ideological positions -- was a reaction to the firmness of the liberal bloc's unity.

Paul Cappuccio, a former law clerk to Justices Kennedy and Scalia and now a Washington lawyer, suggested last week that "it took all five of the conservatives to do anything" because they had to contend with "a solid liberal bloc." When staying together to counter the liberals, the conservatives "tended to be more forceful," he said.

Court's dynamics

The liberal bloc gained a more or less committed member this past term with the arrival of Justice Breyer, President Clinton's second appointee. Justice Ginsburg, another liberal-leaning Clinton choice, showed a year earlier that the bloc had "the intellectual power to mix it up" with the conservatives, as Mr. Cappuccio saw the court's dynamics developing. The conservatives had a stronger sense "of what they were voting against," he said.

Liberal advocacy groups noticed, with some anxiety, the same conservative solidarity. The People for the American Way's legal director, Elliot Mincberg, for example, said the just-completed term "was marked by conservative judicial activism."

For liberal observers, in fact, the term's overall results had a distinctly threatening tone. "All in all," said the American Civil Liberties Union's legal director, Steven R. Shapiro, "it's been a disappointing year that ended on an extremely ominous note."

He was referring to the court's final day, when the justices imposed strict new limits on the creation of black-dominated election districts and eased considerably the long-standing ban on government support of religion.

Conservative organizations, by contrast, appeared to be largely pleased with the results. Mathew D. Staver, president and general counsel of Liberty Counsel, a legal advocacy group based in Orlando, Fla., said: "I think it's a distinctly more conservative court . . . a little bit more traditionally conservative."

He noted with approval the court's growing skepticism about "federal government involvement in state and local issues."

But, he cautioned, conservatives cannot rely heavily upon the trends of last term, "because the decisions are so close: the votes are just one vote apart."

Same lineup likely

As the term ended, there was no sign that any justice, from either the court's left or right, would retire this summer. Another term is likely with the same lineup as the court faces new appeals dealing with gay rights, women's rights and voters' rights.

Should there be a vacancy on the court next year, late in the term or after it concludes next summer, it is doubtful that the Republican-controlled Senate would approve a new Clinton nominee. The Senate could leave the vacancy to be filled after a new presidential election in November 1996.

There is clear precedent for that: Republican senators filibustered into extinction President Lyndon B. Johnson's attempt in 1968 to name a replacement for retiring Chief Justice Earl Warren. They saved the chief justiceship for newly elected President Richard M. Nixon to fill in 1969 with Warren E. Burger.

While the term just closed did illustrate the conservative justices' power, it also showed the narrowness with which those five hold command -- and thus signaled the importance of the court's future as an issue in the presidential campaign.

Of 84 votes cast to decide cases in the term, 16 were by 5-4 votes, according to a statistical study of the term by David F. Pike, Supreme Court analyst for a lawyers' newspaper, the Los Angeles Daily Journal.

Kennedy and O'Connor

A significant element in those 5-4 votes was the influence of two justices who tended to vote more conservatively during the term: Justices Kennedy and O'Connor, who are considered to be the most moderate within the conservative bloc.

Those two voted together in the majority in 11 of the 16 decisions settled by 5-4 votes. One or the other of them was in the majority in all 16 -- a clear indication that, no matter who the other four making up a majority were, either Justice Kennedy or Justice O'Connor was necessary to make a fifth.

And, usually, the five-justice majorities that formed in the most important decisions included both of them. That was true of the affirmative action ruling, the decision limiting the use of race in drawing congressional districts, and the most important ruling on the subject of government subsidies for religion.

Those two helped form the thin majority in one of the most conservative decisions of the term, striking down a federal law that outlawed carrying a gun in or near a school -- a warning to Congress that the court may curb social legislation that interfered with states' rights.

And Justices Kennedy and O'Connor were among the five who voted to put strict new limits on federal judges' power to act

boldly to try to end lingering racial segregation in public schools.

Only one of the court's major 5-4 rulings could be described as having a liberal result: the decision to bar the states, Congress and the people as voters from limiting congressional terms. Justice Kennedy joined the four liberals in that case; Justice O'Connor dissented with the conservatives.

Overall, however, Justice Kennedy appeared to be moving noticeably toward the conservative side during the term. And, as Professor Tushnet remarked recently, it seems that "the Constitution is what Anthony Kennedy says."

The Daily Journal's Mr. Pike found in the voting patterns a sign of Justice Kennedy's more conservative leanings: His most common pairing was with Justice Thomas, who votes consistently as the court's most conservative member. They were together in 73 out of the 84 total votes, according to the Daily Journal figures.

A more centrist position

Justice O'Connor was less an ally of Justice Thomas' in the voting, an indication that she maintained a somewhat more centrist position. She voted most often -- 64 times -- with Justice Kennedy and Justice Souter. Her fewest vote pairings were with Justice Thomas (59) and Justice Stevens (51) -- notably, the most conservative and the most liberal justices.

Either Justice Kennedy or Justice O'Connor was available as an ally when the court's liberals were able to form a majority of five or more in major cases: Justice Kennedy on the 5-4 vote against term limits; both of them on a 6-3 vote to nullify a federal ban on honorariums for rank-and-file government employees; both on a 7-2 decision to strike down a state ban on anonymous political literature; both in the unanimous ruling to allow parade organizers to keep out marchers with views the organizers oppose; and both in the 6-3 decision allowing the government to outlaw private actions that disturb the habitat of wildlife on the government's endangered species list.

In addition, Justices Kennedy and O'Connor joined with a unanimous court in one significant liberal decision written by Justice Thomas: a requirement that police must knock and announce themselves before entering a home to carry out a search.

THE CONSERVATIVE SWEEP

The Supreme Court's most important decisions of the term with conservative outcomes, showing the vote split:

* Black-dominated election districts are unconstitutional if they were formed mainly to promote racial gerrymandering (5-4).

* Federal affirmative action plans are to be struck down if they cannot satisfy the strictest constitutional limits on the use of race as a decisive factor (5-4).

* State universities act unconstitutionally if they allow some student publications to share in student activity fees but deny those fees to religious publications (5-4).

* Congress exceeded its constitutional powers when it passed a law making it a crime to possess a gun at a school or nearby (5-4).

* Public schools may order the surprise drug testing of student athletes, even those not suspected of using drugs, if the school seems to have a drug problem (6-3).

* State and local governments may not bar religious holiday displays from public property that is open to other displays, unless a display suggests that the government endorses the religious symbolism (7-2).

* Federal judges overseeing the desegregation of a formerly segregated public school system must strictly limit the remedies they impose to schools in the city, and not reach out to the suburbs to draw in whites (5-4).

* States may put strict limits on "ambulance chasing" by lawyers seeking to drum up business from accident or disaster victims (5-4).

* Prison inmates can go to court to challenge the warden's rules on such things as solitary confinement only in rare situations (5-4).

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