High court's recent rulings, future are campaign issues

THE BALTIMORE SUN

With the nation approaching an election that could shape the future of the Supreme Court, an activist court has been flexing its authority to the left and to the right, striking down a host of laws and government policies.

The term that ended last week had "a remarkably large number of big, important cases," said Miguel A. Estrada, a Washington lawyer and experienced Supreme Court advocate. The justices, he said, dealt with "all of the hot-button issues."

Those issues - abortion, school prayer, gay rights, crime - are the ones that help keep the nation's culture wars going, and they are the ones likely to figure in this year's presidential and congressional campaigns.

The candidates almost surely will be talking at length about the court's rulings in cases involving those controversies, and that debate is likely to focus on the next president's power to nominate Supreme Court justices.

With widespread speculation that some justices will be leaving the court in the next few years, it has become commonplace to talk about several seats becoming a prize for the party winning the White House.

And, with the court often split 5-4, new justices could begin to move the court in different directions.

During its just-completed term, the court was divided 5-4 in 21 of 74 decisions, or 28 percent, the highest number and the largest percentage in almost a decade, said Thomas C. Goldstein, a Washington lawyer who tracks the court's work closely.

President Clinton, noting that the court's latest decision upholding abortion rights was one of those 5-4 decisions, said, "In the next four years, there will be somewhere between two and four appointments to the Supreme Court."

Abortion rights, he said, are "very much in the balance."

Rep. J. C. Watts, an Oklahoman who heads the House Republican Conference, commented about the abortion ruling: "I look forward to the day when a Republican president will replace retiring liberals with justices who will truthfully interpret the Constitution rather than impose their activist views against states and the people."

A broader view on the court's future as a campaign issue was expressed by the Institute for Justice, a conservative legal advocacy group that takes part in many major Supreme Court cases.

"The results of the upcoming election and the appointments made by the next president will largely determine which direction the court will take," said Chip Mellor, the institute's president.

'Top of the agenda'

"So, while there are many important issues at stake, the topic of Supreme Court appointments deserves to be at the top of the agenda."

For weeks, People for the American Way, a liberal advocacy group, has reacted to virtually every major decision emerging from the court by reiterating the importance of the seats that could become vacant for the next president to fill.

Most of the speculation about voluntary departures from the court has centered on Chief Justice William H. Rehnquist, who will be 76 in October, Justice Sandra Day O'Connor, 70, and Justice John Paul Stevens, 80.

They are generally arrayed across the philosophical spectrum: Rehnquist a conservative, O'Connor a moderate, Stevens a liberal.

None has given any indication of plans to retire, but that has not quieted the speculation.

During the past term, Rehnquist and O'Connor voted together in nearly 90 percent of the decisions, according to Goldstein's statistics. In the 5-4 cases, O'Connor was in the majority 18 times out of 21, Rehnquist 16 times.

Stevens voted with Rehnquist less than half the time but voted somewhat more often than that with O'Connor. He was in the majority in five of the 5-4 decisions.

The court's most conservative members, along with moderates O'Connor and Justice Anthony M. Kennedy, made up the majority in two-thirds of the 5-4 rulings. Those five included Rehnquist, O'Connor, Kennedy and conservative Justices Antonin Scalia and Clarence Thomas.

If two or more of those justices leave the court in the next few years, those nominated by the next president to replace them could be casting decisive votes in future cases.

With the election four months away, the court was in the headlines repeatedly as the past term wound down, a result of the court's readiness, sometimes eagerness, to decide some of the most controversial social issues.

Liberal surprises

For a court that for years has had a reputation of being deeply conservative - a reputation it kept intact in many of the past term's 5-4 rulings - it did provide some liberal surprises.

"The conventional wisdom," said John G. Roberts Jr., a Washington attorney active before the court, "is that this is a conservative court. We have to take that more skeptically.

"On the three issues that the public was most interested in - school prayer, abortion and Miranda rights - the conservatives lost on all.

"I don't know how you can call a court conservative when it upholds the Playboy Channel's right to broadcast its kind of programs."

Another distinctive feature of the current court's approach, said another court advocate, Walter E. Dellinger, is that "this is a court that is inclined to invalidate laws at a very, very high level" of frequency.

Over the past five years, he said, the court has struck down 24 acts of Congress. "If that's not a record, it has to be close to it," Dellinger said.

Acts that fell in the just-concluded term alone were a law seeking to overrule the requirement that police give suspects "Miranda warnings" about their rights, a law giving women who have been raped or battered the right to sue their attackers and a law that sought to force cable TV stations to broadcast sexually explicit programs - like the Playboy Channel's - only late at night, to keep them from being seen by children.

Significant federal policies sometimes did not survive, either, as when the court nullified the Clinton administration's attempt to curb the manufacture and sale of cigarettes and chewing tobacco to protect children from taking up the tobacco habit.

But the court, often described as sympathetic to states' rights, also did not spare a number of state laws and policies during the past term.

It barred:

* Nebraska from imposing a wide ban on abortion procedures.

* New Jersey from requiring the Boy Scouts to admit homosexuals.

* Washington state from forcing parents to allow grandparents to visit their children.

* California from opening up primary elections to nonparty members and independents.

* New Jersey from making it easy to impose extra prison time when a crime is committed out of racial or ethnic hatred.

* Massachusetts from trying to influence human rights policies in Myanmar, formerly Burma, by an economic boycott.

* Hawaii from letting only native Hawaiians vote in a special election for an agency dealing with preservation of ethnic heritage.

In its most significant setback for local government, the court barred a school district in Santa Fe, Texas, from turning over to students the choice of having prayers at school.

Court landmarks

The Supreme Court made history day after day in its just-ended term, issuing a long list of landmark rulings.

Here, by category, are some of the most significant:

Religion

* Student-led prayers at public school events are unconstitutional when school officials let students make the choice. (Vote: 6-3)

* Governments may buy computers, software and library books and lend them at no charge to parochial schools. (6-3)

Abortion

* Bans on a certain late-term abortion procedure are unconstitutional if they outlaw common methods of abortion and do not allow doctors to use the procedure when they believe it is right for a patient. (5-4)

* State and local governments may pass laws to require abortion protesters outside clinics to stay at least 8 feet away from women using the clinic. (6-3)

Family rights

* Parents have a basic right to make most major decisions about raising their children, so states may not force parents to let grandparents have visits. (6-3)

* The court refused to review a government decision that the father of a 6-year-old Cuban boy, Elian Gonzalez, had the right to refuse political asylum for the boy, clearing the way for his return home. (No recorded vote)

Gay rights

* States may not force the Boy Scouts to accept homosexuals as scoutmasters. The ruling also might permit the exclusion of gay boys as members. (5-4)

Health care

* No federal agency has authority to regulate the health effects of cigarettes and chewing tobacco. (5-4)

* HMOs have a clear right under federal law to cut costs by providing less expensive care, so patients' lawsuits against managed-care doctors for rationing services are barred. (9-0)

Crime

* Miranda warnings remain a constitutional requirement for police, so Congress had no power to try to make them unnecessary. (7-2)

* It is unconstitutional for police to squeeze or manipulate luggage in racks on a bus to determine whether it contains drugs. (7-2)

* Someone who runs when police arrive in a high-crime area may be stopped for questioning and a quick search. (9-0)

* Police who get an anonymous tip that a person has a gun have no authority to stop and frisk that person for the weapon. (9-0)

* If a jury is confused about whether it may impose a life sentence instead of death, the judge has no duty to provide more guidance. (5-4)

Entertainment

* Cities may ban nude dancing if they do so as part of a ban on public nudity. (6-3)

* Congress acted unconstitutionally in requiring cable channels to block all sexually explicit programs or put them on late at night. (5-4)

Domestic violence

* Congress had no authority to give victims of rape, battering and other domestic abuse a right to sue their attackers. Domestic violence is a local problem beyond the jurisdiction of Congress. (5-4)

Elections

* States may set low ceilings on campaign contributions without interfering with candidates' right to get their message out. (6-3)

* States may not allow all voters to take part in choosing a party's candidates because that could produce nominees party members might not want. (7-2]

Education

* State colleges may require all students to pay activity fees to support extracurricular groups, even groups some students oppose. (9-0)

Auto safety

* Federal law controlling when air bags must be installed in cars bars lawsuits in state court for failure to install the devices earlier. (5-4)

-- Sun national staff

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