Supreme Court acts boldly, reveals evolving alliances Conservatives part ways on some close decisions


WASHINGTON -- The Supreme Court, a modest tribunal that prefers to avoid surprises, showed again in its just-ended term that it can engage now and then in bold judicial ventures.

And, though its membership has not changed over a four-year span, its internal alliances seem to be shifting somewhat -- the most significant shift being some separation between its two most conservative members, Justices Antonin Scalia and Clarence Thomas.

For the first time, they wound up on opposite sides of several 5-4 decisions, the most contested cases the court decides and usually the strongest tests of judicial views.

In a pair of key decisions just before starting its summer recess Friday, the court created a significant widening of federal civil rights protection -- against sexual harassment on the job and against bias toward the disabled.

Having done little up to now to clear up the laws on harassment and on disability rights, the court handed out clear-cut guidance on what companies must do to see that sexual abuse is not a daily occurrence at work, and on the right of people with disabilities to equal treatment in jobs, housing, medical care and prison facilities.

Often a serious disappointment to the American Civil Liberties Union, the court won that group's qualified praise for this term. "Hopefully," said ACLU legal director Steven R. Shapiro, the term "shows that vigorous enforcement of the nation's civil rights laws will no longer divide the court along ideological lines."

Conservative groups also were partially satisfied, with the conservative Family Research Council, for example, saying it was pleased with "a strong message" from the court in allowing the government to refuse to subsidize art considered to be "indecent." But a law-and-order group, the National Victim Center, condemned the court for cutting off school students' opportunity to sue for sexual abuse by their teachers.

In another sign of boldness, the court appeared to stretch its powers in order to decide some key cases not within its ordinary reach. That is "a surprising development for a conservative court" usually devoted to deciding as little as it can, said Washington attorney Mark I. Levy.

One instance of that was its decision striking down a historic attempt by the two other branches of government to help achieve balanced budgets: the law giving the president line-item veto power.

Swift decisions

Although the court regularly takes months to decide some of its most important cases, and did so again last term, it also demonstrated that it could act swiftly if need be. It resolved in a matter of hours what had become an international incident between the nation of Paraguay and the state of Virginia over a death sentence for a Paraguayan convicted in that state. It ruled in Virginia's favor, forcing Paraguay to take its grievance to the World Court in The Hague, Netherlands.

And it acted within weeks to resolve two urgent cases -- the line-item veto case, and one involving Whitewater independent counsel Kenneth W. Starr's criminal investigation of President Clinton and Hillary Rodham Clinton. In that case, it refused to force a lawyer for late White House aide Vincent W. Foster Jr. to turn over notes of a private conversation that may bear upon White House scandal.

But the court declined to take swift action on the main legal contests between Starr and the president over evidence being sought for Starr's Monica Lewinsky investigation. Those controversies, however, seem likely to return to the court by the opening of its new term on Oct. 5.

For that term, the court has already chosen some cases to review. But returning to its recent form, it has granted review of fewer than three dozen, with not one major constitutional controversy among them. Some such controversies may be on the way, however: affirmative action, federal government power to regulate smoking, gays in the military, anti-gay ballot issues, and religious freedom, as examples.

Avoiding some disputes

When it had the chance during its past term to stay away from some major disputes, it often did so: It passed up a test case on California's Proposition 209, dismantling affirmative action in that state, as well as cases raising for the first time issues about prosecution of women for using drugs during pregnancy,

late-term abortion bans, gay marriage, and the famous "Megan's Law," New Jersey's pace-setting law providing for publicly identifying convicted sex criminals living in a community.

What the court did opt to decide, though, was often significant, as shown by more than a handful of decisions ranking as landmarks.

The court's more moderate justices, in the center philosophically, continued to dominate the results the court reached. Two measures, among statistics about the court kept by Thomas C. Goldstein, a Washington lawyer and adjunct law (( professor, illustrated the point.

Kennedy and O'Connor

Justice Anthony M. Kennedy, who often symbolizes the power of the court's center, cast only six dissenting votes on decided cases during the term. By contrast, the court's most liberal justice, John Paul Stevens, cast 23, and one of its most conservative, Scalia, cast 21.

In addition, Kennedy seemed to hold most often the deciding vote when the court split 5-4, as it did 16 times. He was in the majority 13 times, the most of any justice, according to Goldstein's data.

Taking all rulings together, Kennedy agreed 60 percent of the time with Stevens and 59 percent of the time with Scalia.

Justice Sandra Day O'Connor, another of the key justices in the middle, agreed with Stevens 58 percent of the time and with Scalia 62 percent of the time. That data suggested what some of the decisions had seemed to show: O'Connor's views tended to be somewhat more conservative than Kennedy's during this term.

For example, O'Connor dissented from the Kennedy opinion applying the Americans with Disabilities Act to patients who test HIV-positive but have not developed symptoms of AIDS. They also were on opposite sides of the line-item veto case, Kennedy voting to strike it down, O'Connor to uphold it.

Scalia and Thomas

Goldstein suggested that, examining the relationships between the justices, "the most noteworthy development" he detected was some difference in the usually close voting alignment between Scalia and Thomas. Four times, he said, they were on opposite sides of 5-4 decisions. Thomas voted with the majority 11 times, Scalia seven.

"Clarence Thomas is really beginning to articulate his own views, and I would not be surprised to see him continuing to develop his own vision" about what the law is or should be, said Goldstein. "It will take a few terms to tell."

His data noted that Scalia and Thomas agreed fully with each other 82 percent of the time, and suggested that they remain likely to vote together "when real conservatism is on the line."

Most significant rulings

The Supreme Court closed its term on Friday after deciding 91 cases. These were the most significant rulings:

Line-item veto: Congress acted unconstitutionally in letting the president delete specific items from spending and tax laws (6-3 vote).

Sexual harassment: Federal law against harassment on the job holds employer to blame if the victim is penalized for resisting a supervisor's advances (7-2); the law applies even when harasser and victim are of the same sex (9-0). A different federal law seldom allows students to win damages for harassment by teachers (5-4).

Disabled individuals: Federal law protecting the disabled from discrimination applies to individuals with HIV infection who have no symptoms yet of AIDS (5-4); the law applies to state prison inmates (9-0).

Arts funding: The government has broad power to select the kind of art it will subsidize, and it can choose not to finance indecent art (8-1).

Starr's investigation: A lawyer for White House counsel Vincent W. Foster Jr. does not have to turn over notes on what Foster said before his suicide about a scandal that may be linked to Hillary Rodham Clinton (6-3).

Police chases: Police who kill or injure someone during a high-speed chase of a suspect may be sued only rarely for damages (9-0).

Ellis Island: Most of New York harbor's historic Ellis Island, the port of entry for millions of immigrants, lies in New Jersey, not New York (6-3).

Pub Date: 6/28/98

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