Supreme court at turning point Justices consider difficult cases, possible retirements; Rehnquist era ending?; Perot, Clinton, tobacco, assisted suicide among likely cases


WASHINGTON -- With the rest of the capital absorbed in an election campaign, the Supreme Court will return to take up legal disputes tomorrow, with a good chance that it, too, will be drawn into presidential politics by week's end.

Ross Perot's effort to use the courts to win inclusion in the presidential campaign debates is likely to land on the court's docket as a constitutional dispute. Lower courts are expected to act on it earlier in the week. The first debate is set for next Sunday, so the justices would have to act swiftly.

However they react to Perot's legal bid, the justices probably will generate some controversy on their own as they begin announcing the new cases chosen for review later in the term. The term opens formally a week from tomorrow, when hearings begin.

But private discussions among the justices will begin tomorrow, and orders to accept new cases could be made as early as Tuesday.

Speculation is rife among politicians, lawyers and law school faculties that this term will be the last for the "Rehnquist Court," although Chief Justice William H. Rehnquist has given no clear indication that he plans to retire next summer, the earliest that it likely would occur.

He has just reached his 10th anniversary as chief justice, on Tuesday he marks his 72nd birthday, and in January he will complete his 25th year on the court. From time to time for years, he has reportedly pondered retirement. But those close to him -- judges, former law clerks and others -- have said they see no sign that he is ready to leave.

Should Rehnquist retire during the next few years, it is widely assumed that President Clinton, if he is still in office, would elevate Ruth Bader Ginsburg to chief justice. No woman has been chief justice in the court's history. In fact, of the 108 justices who have served, only two have been women: Ginsburg and Sandra Day O'Connor.

The other justice whose retirement has been rumored -- Justice John Paul Stevens, at 76 the court's oldest member -- has done nothing to confirm such reports. Similarly, Justice O'Connor has taken no steps to support the occasional speculation that she may leave the court.

"All three [Rehnquist, Stevens and O'Connor] are very, very vigorous people," says Theodore B. Olson, a frequent court advocate who said he doubts that any retirements are imminent. He does foresee two or three vacancies occurring during the four-year term of the president who will be elected next month.

Olson said he expects the court to continue to swing back and forth between conservative and liberal decisions, with the balance of power held by moderate Justices O'Connor and Anthony M. Kennedy. The lineups of the other justices -- four of whom are liberal most of the time, three conservative most of the time -- "are going to prevail for a while," he said.

When the justices meet tomorrow for their private conference, among the new cases facing them are two involving the "right-to-die" issue, a sensitive one on its own but made increasingly so by the 40 suicides aided by Dr. Jack Kevorkian.

Two federal appeals courts have issued differing interpretations of a "right-to-die," but both came to the same conclusion: the Constitution assures terminally ill patients who are competent of the right to have a doctor's assistance to end their lives.

The Supreme Court could still opt to bypass the dispute. But few legal analysts expect it to do so, because the court has temporarily blocked assisted suicides in Washington state until the issue can be examined further.

Even without taking up new controversies, the court is awash in disputes previously placed on the docket, including a constitutional case involving Clinton personally. Clinton has asked the court to postpone Paula Cor

bin Jones' sexual misconduct lawsuit against him until he has finished his presidential service, a plea turned down by two lower courts.

If Clinton loses his bid for re-election, the Jones case would simply disappear from the Supreme Court docket; it would go to trial or be settled out of court. If Clinton wins a new term, the justices will probably hold a hearing in January on his request for a postponement.

Among other issues to be decided: the power of states to make English the only language used in government operations; the authority of judges to place a protective "zone" around women and doctors near abortion clinics, to insulate them from protesters; and Congress' power to require a waiting period before anyone may buy a gun, with local sheriffs and police chiefs obliged to screen would-be buyers.

Although the court has assigned itself a dozen more cases for decisions than it had at this stage a year ago, the total is still well below the norm of a decade ago. Bruce J. Ennis, a Washington lawyer who appears often before the Court, said the trend "relects the court's inclination to decentralize the overall allocation of governmental power," allowing more power to flow to lower federal courts and to state courts.

Justice O'Connor said last summer that she thought the workload had now reached its lowest point, with only 75 decisions last term, and that it might start to rise again.

The court opens its hearing schedule a week from tomorrow with a case on cable television, one of several First Amendment issues the justices plan to review. The cable dispute is over the constitutionality of a federal law that requires operators to carry, free, all the programs of local TV stations.

The court's view on the First Amendment rights of cable TV has been left uncertain, given its ruling last term that communications technology was moving too fast for the court to lay down any general rules on such rights.

That uncertainty is likely to spread from cable TV to the Internet, when the justices turn to a soon-to-be-filed plea by the Justice Department to revive a federal ban on "indecency" on the global computer network. That ban has been struck down by two lower courts, which said that Internet users were entitled to the strongest constitutional protection for their expressions.

The outcome of another pending First Amendment case could (( affect the Clinton administration's plan to force tobacco makers to pay for publicity to warn teen-agers against tobacco use. The case will test the constitutionality of government requirements that California fruit producers pay for promotional ad campaigns.

Later on in the term, the court may examine a Baltimore ordinance that seeks to ban tobacco billboards where minors could see them. A decision in that case could affect the administration's program to control cigarette and smokeless-tobacco advertising and marketing.

Here are some of the other issues awaiting the court:

Cases already granted review: The scope of police authority to control what drivers and passengers must do when their vehicles are pulled over for traffic violations -- at issue in a Maryland case in which U.S. Attorney General Janet Reno will personally join Maryland Attorney General Joseph Curran in arguing for broader police power; a federal government claim that the Constitution protects women from sexual assault by police, judges and other government officers; and the constitutionality of a congressional redistricting plan that reduced Georgia's black-dominated districts from three to one.

New cases, not yet granted review, but at the court or on the way there: the constitutionality of the Clinton administration's "don't ask, don't tell" policy that restricts homosexuals in the military; the constitutionality of the gas chamber as a method of execution; the duty of school officials to protect students from sexual assault by other students; the constitutionality of the federal law that protects abortion clinics from efforts to shut them down; and the constitutionality of a federal law that provides greater protection for religious organizations or individuals from government controls.

Pub Date: 9/28/96

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