High Court Surprises Both Conservatives and Liberals With This Term's Decisions
IF the Senate had not refused to confirm Robert Bork in 1986, the Supreme Court term that ended this week would have ended very differently.
Judge Bork, for instance, would almost certainly have joined the four justices on the court ready to scrap any Constitutional right to an abortion, putting that view in the majority.
But Bork is not here, and the justice that President Reagan named in his place, Anthony Kennedy, has stunned students of the court with the nature of his opinions in the past two weeks.
This was the year when conservative opinions were to hold ever more comfortable majorities on the Supreme Court, making possible more aggressively sweeping decisions.
But the Supreme Court did not finish out the 1991-92 term quite as anyone expected.
Instead of a conservative triumph, a three-justice coalition formed at the political center of the court that stopped short its slide to the right.
This bloc, consisting of Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter, has been especially critical in the balance of power on church-state separation and abortion.
The balance is delicate, however, in a heavily fractured court often voting 5 to 4, with split opinions forming various coalitions around different elements of a decision.
On both issues, a more conservative view is now regularly putting up four votes, one shy of a majority.
The balance could easily change, as Justice Harry Blackmun, the court's most liberal member, starkly put it in his concurring and dissenting abortion opinion Monday:
"I am 83 years old. I cannot remain on this court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today."
Choosing Justice Blackmun's successor is likely to be one of the most far-reaching decisions of the next president - whether George Bush, Bill Clinton, or Ross Perot. Kennedy surprised many
Up until two weeks ago, Mr. Kennedy showed strong indications that he would vote with the court's right wing on the most controversial issues.
Liberals noted with chagrin that he appeared just as conservative as Mr. Bork - only not as outspoken.
On abortion, Kennedy wrote a 1989 opinion that indicated states could apply any restrictions on abortion based on a rational state interest. This is the view that Chief Justice William Rehnquist and Justices Antonin Scalia, Byron White, and Clarence Thomas signed onto Monday.
But Kennedy was not with them. Instead, he wrote an opinion with Justices O'Connor and Souter that affirmed a woman's liberty interest in the right to choose abortion - a right that a state cannot obstruct with an "undue burden."
Kennedy followed a similar pattern in the court's most significant church-state case this term. In 1989, he wrote a dissenting opinion in a case that argued strongly for loosening the strictures that keep religion from public life. Only government coercion in religious matters should be banned under the Constitution, he argued.
In a decision last week about a prayer at a middle-school graduation, the court's four staunchest conservatives signed Scalia's opinion that the prayer should be allowed. Kennedy wrote the majority opinion that the prayer was unconstitutional.
It is difficult to discern how much Kennedy's views have actually shifted on religion. He still may believe that state coercion is the only limit to church-state entanglement and that the court's doctrine should say so. He found the prayer in this term's case to be coercive anyway, so the larger question did not arise.
The character of the two Bush appointees is beginning to emerge on the bench. Souter appears to be a moderate, cautious justice whose conservatism is respectful of precedent and judicial restraint. Thomas is by far closer in his votes and opinions to Scalia than to anyone else. The two of them are on the activist right wing of the court. Scalia's pointed pen
The personality of Scalia, a pointed and powerful opinion writer, is having an impact on the court beyond the content of his arguments. He often writes using "I" instead of the more traditional "we" of judicial opinions. He is a prolific writer whose opinions are often scathing, snide, and scornful of differing views on the court.
His poison-pen style has affected others on the court. Duke law professor William Van Alstyne notes that opinions are becoming "more quarrelsome, more ad hominem, more snide."
One speculation is that Scalia's take-no-prisoners polemics have pushed O'Connor, Souter, and perhaps Kennedy further from sharing his opinions.
Scalia offered his own surprise late in this term when he wrote a majority opinion strongly opposing any content-based or viewpoint-specific regulation of free speech. His support of the speech rights of cross burners is consistent with his 1990 support of the speech rights of flag burners.