Centrist Members Steer High Court On Key Decisions
But pigeonholing the ideology of the court remains a dangerous philosophical exercise
THE United States Supreme Court's historic decision striking down congressional term limits, combined with other recent important rulings, reflects a tribunal whose 1994-95 session has been dominated by a swing vote of moderate-to-conservative justices.
This centrist bloc -- in particular, Justice Anthony Kennedy and, sometimes, Justice Sandra Day O'Connor -- has gone back and forth between more ideological colleagues who often seem deeply split over the sources and limits of government power. The result has been something of a muddle: a cautious court, more conservative than it used to be, but not clearly right wing.
''There may be some deeper unity here, but I can't see it yet,'' says Mark Tushnet, an associate dean at Georgetown University Law School and a former clerk for the late Justice Thurgood Marshall. ''It may take some time to figure out what's going on.''
The edges of the court's ideological spectrum are relatively clear. The conservative core is formed by Chief Justice William H. Rehnquist, and Justices Antonin Scalia and Clarence Thomas. Court watchers also judge Ms. O'Connor more of a conservative on law-and-order issues.
The other side of the court is liberal in comparison, though not usually as expansive in their view of the federal government's powers as were Marshall and the retired Harry Blackmun. Justices Stephen Breyer and Ruth Bader Ginsburg, according to analysts, have largely reflected the leanings of the man who appointed them, President Clinton. That means they are moderate on economic rulings while remaining liberal on social issues.
Meanwhile, Justice David Souter, appointed by President Bush, has veered from a conservative beginning to a reliable vote siding with more liberal colleagues in a relatively short period of time, according to analysts.
''I guess he's more of a Yankee than a states' rights man,'' says Thomas Baker, a professor of law at Texas Tech University in Lubbock.
That leaves Kennedy, and to a lesser extent O'Connor, in the middle. The way this plays in practice can be seen in what some analysts judge the court's two most important rulings this session: term limits, and the so-called Lopez case, which last month struck down 60 years of precedent and limited congressional power to regulate interstate commerce.
ON term limits, Kennedy joined Justices Breyer, Ginsburg, Souter, and John Paul Stevens to provide the 5-4 margin of victory. Chief Justice Rehnquist was in the minority, joined by Justices O'Connor, Scalia, and Thomas.
''It's a fateful move by the court and conducted basically by Justice Kennedy, the swing vote,'' says Harvard Law professor Richard Parker, who adds that he thinks the vote is a ''terrible mistake as an act of statecraft.''
On the commerce clause vote, the split was exactly the same -- except for Kennedy, who sided with his more conservative colleagues. That case struck down a federal law criminalizing the possession of firearms near schools, leaving it to the states to exercise such police powers.
Congress had enacted the law under its powers to regulate interstate commerce, a loose justification used to expand federal power since the New Deal.
By reversing this course, the court in essence struck back at decades of creeping expansion of the reach of the federal government.
When it comes to pigeonholing the ideology of the court, always a dangerous philosophical exercise, these two decisions merely complicate matters, point out experts.
That's because the term- limits decision slaps at the power of the states, in favor of the power of the federal government. The commerce-clause decision can be interpreted as exactly opposite.
''These were their two most significant cases, and they sort of point in different directions,'' says Mr. Tushnet, the former clerk for Marshall.
Others are more quick to judge the court conservative overall.
They point to the fact that the term-limits vote was much closer than many analysts expected.
''It indicates a strong pro-state sentiment on the part of more conservative justices,'' says Jamin Raskin, an associate dean of law at American University in Washington.
Mr. Raskin also points to another important high court decision handed down this week that let stand a ban on blacks-only scholarships at the University of Maryland.
The impact of the University of Maryland decision will be to invalidate, or at least call into question, similar affirmative-action programs at more than half the nation's universities. (The decision does not reflect on federal government affirmative-action programs.)
''The court is really saving the banner of color blindness,'' says Raskin.