New Term May Define Tilt in Scales of Justice
It will test court's conservative leanings
COMING off a startling series of conservative rulings last spring, the US Supreme Court opens a new term today that will help define the extent of the rightward tilt of nation's highest constitutional authority.
Last June, in rulings that challenged decisions dating to the liberal Warren court of the 1970s and that echoed the 1995 Republican ''revolution'' on Capitol Hill, the court weakened legal distinctions based on race, and, for the first time in 60 years, limited the power of Congress in favor of states rights.
The new term will help determine whether this was part of a conservative revolution or just further drift to the right. It will also yield new insights into the personal dynamics of a tribunal that has added three new members in the past four years.
On the surface, at least, this year's calendar looks like a slow and quiet one for the nine justices.
With a few exceptions - a difficult case next week on Colorado's anti-gay-rights initiative, for example - this court term may lack the kind of hot-button cases that could signal a clear direction.
In December, an important set of civil-rights cases out of Texas and North Carolina deals with the ongoing issue of redistricting.
The court has been curbing the practice, which creates congressional districts that favor historically disadvantaged racial minorities.
An Alabama case comes up that is particularly important to the business community, since it may help limit the ''punitive damages'' awarded by juries to aggrieved parties.(See box, right.)
Yet, so far, few defining cases exist on the docket. No abortion issues are pending. Nor are there any outstanding cases in the area of criminal law or religious exercise.
''We are at a moment of enormous ferment, with talk of multiple political parties, and the Contract With America placing potentially divisive issues on the table,'' says Rodney Smolla, director of the Bill of Rights Center in Williamsburg, Va. ''Yet the Supreme Court seems to say it is not going to be a player.''
Even in an area dear to the hearts of four justices - returning power to state and local governments - no four-star cases are pending.
Other scholars point not to cases, but to the case load, in characterizing a court that has not shown a proclivity to move in bold new directions. Only five years ago, the justices heard between 120 and 140 cases a year.
Last year, however, the court, the youngest in memory in terms of age, heard only 82 cases.
This year, some predict the court won't hear more than 70 cases, a dramatic low.
''This is a workman-like court,'' says Anita Richardson, editor of the American Bar Association Supreme Court Preview, ''they see themselves in the traditional role of a reviewing court, not as activists.''
But early predictions of the court term are often wrong. Many of the upcoming cases - this year more than half - have not yet been announced.
Last October, for example, conventional wisdom held that the court faced a sleepy and irrelevant year. Yet in mid-February a series of cases arose that would, by the close of the term at the end of June, mark a significant victory for the conservative agenda of Chief Justice William Rehnquist.
Last spring also witnessed the emergence of a more aggressive Justice Clarence Thomas. The term brought a victory for the states rights wing of the court in the first ruling in 60 years (Lopez) to limit the power of Congress.
In both Lopez, and a key church-and-state case, the court showed a willingness to reverse long-held legal precedent and move to a more active conservative position.
Most significantly, led in part by Justice Thomas's opinions, the court weakened the foundations of race-based civil rights - weighing in with ''color blind'' opinions on affirmative action, voting rights, and school desegregation.
In the race cases, and in the Lopez case, the conservative wing of the court ruled, essentially, that a stricter standard of proof was required by the federal government in conducting its programs designed to remedy social inequities.
Moreover, the elections of November 1994 and the GOP legislative juggernaut on Capitol Hill led by House Speaker Newt Gingrich, gave a louder tone to the court decisions, scholars say.
Yet whether last term's rulings mark a conservative revolution that will sweep through and reverse the New Deal legacy of the court, or simply open a debate, is the unanswered question.
Pointing to the docket, Mark Tushnet, dean of the Georgetown University Law School in Washington, D.C., says the question won't be answered this term: ''There are limits to the amount of energy the court can generate in moving to the right.''
In shaping the future direction of the court, perhaps the most important and telling dynamic is a tension between what is called the ''Rehnquist agenda.'' There is also the issue of the two swing votes on the court, represented by Justices Anthony Kennedy and Sandra Day O'Connor.
One long-time court watcher asked recently, ''Where does Sandra O'Connor stand? That will be the question this term.''
In recent years the court has tended to avoid hot-button social issues in favor of business-related cases. This year it hears both a plea from phone companies to get into the cable TV business - and an important case determining intellectual property rights of computer software companies.
Yet, David O'Brien, who publishes a Supreme Court review in Charlottesville, Va., argues that ''The court can run, but it can't hide, from social questions.''
One pending case the court is likely to take this term emerges from the Virginia Military Institute. Like the recent case in which Shannon Faulkner pressed to gain admission to The Citadel, an all-male military college in South Carolina, the VMI case takes up the question of equal protection for women in formerly single-sex colleges.