Wither [sic] The Supreme Court?
THE United States Supreme Court will open its doors again next week on the traditional first Monday in October. But to hear some people talk, you almost expect to see a going-out-of-business-sale notice on the court's marble steps.
No one goes that far, of course, but some court watchers say the justices are disengaging from the great issues of the day.
They point to the declining number of cases on the high court's docket. During the 1992-93 term, under Chief Justice William H. Rehnquist, the court decided 107 cases, down nearly one-third from the 150 or more cases decided each year between 1953 and 1986 under Chief Justices Earl Warren and Warren Burger.
Beyond mere numbers, some observers also contend that the Supreme Court is lowering the octane in its caseload. The justices, they say, are reviewing fewer cases dealing with combustive social and political issues, notably discrimination and affirmative action. Rather, in this view, the court is focusing on narrow statutory interpretation or on fine-tuning constitutional doctrine in largely settled areas of the law.
Those experts who perceive that the justices are pulling back from the breastworks offer several explanations:
* Cycles of history. According to this theory, the comparative lull in the Supreme Court's workload is not attributable to any policy adopted by the justices so much as to the ebb and flow of great issues. After more than three decades during which the American experience heaved turbulent issues at the court, history is at low tide. Prof. Barry Friedman of Vanderbilt Law School in Nashville, Tenn., who studies the historical interactions among the three branches of the federal government, says, ``We're at the end of an era, and we're all waiting to see what the next era brings.''
* A conservative court, part I. Bruce Fein, a court watcher and columnist in Washington, notes that, after 12 years during which Republican presidents appointed generally conservative judges to the lower federal courts, ``fewer cases coming up from the appellate courts are at odds with the thinking of the Supreme Court's conservative majority.'' As President Clinton appoints more federal judges around the country, Mr. Fein says, perhaps the high court will accept more appeals in order to reverse liberal decisions of the lower courts.
* A conservative court, part II. The Rehnquist court is conservative not only in the sense of having a right-wing agenda, this line goes: A majority of the justices also are conservative in their opposition to judicial activism. As a matter of judicial philosophy and political theory, it's said, the justices are refusing to barge into every major national issue, especially when the other branches of government are actively engaged.
Not all those who study the Supreme Court are convinced that it has drifted into a backwater. In the last few years, some experts point out, the justices have decided major constitutional cases regarding such volatile issues as flag burning, hate speech, abortion, school prayer, and voting rights. Besides, they say, a significant function of the high court is to settle technical but important questions of tax, pension, or environmental law, especially when there is disagreement among the lower courts.
Robert Nagel, a professor at the University of Colorado Law School in Boulder, isn't sure he sees the court-in-retreat trend. If it exists, though, he applauds. And he offers another possible explanation: national weariness with judicial activism and intuition that the burdens placed on the Supreme Court could be harmful to the institution. ``Maybe we [and, by extension, the justices] are subdued over the heavy and unhealthy expectations we've put on the court,'' Professor Nagel says.
In Nagel's view, the justices would do well to take on fewer cases and to devote more research, deliberation, and careful writing to them.
Nearly all observers agree, however, that if the Supreme Court is catching its breath, the lull won't last. They predict that a number of hot issues - including homosexual rights and bio-ethics -
will be beating on the court's doors soon.
Besides, Nagel sighs: ``Our national addiction to use the Supreme Court to resolve all great social issues is something we just can't get away from.''