TIME: Almanac 1993/TIME Almanac 1993.iso/time/100989/10098900.026

Text File | 1992-09-23 | 8.6 KB | 173 lines

                                                                                LAW, Page 83

Enter, Stage Right


Cast conservatively, the court returns for a busy new session

By Alain L. Sanders


    They showed their colors last term. From civil rights to
criminal procedures to privacy protections, the Justices of the
U.S. Supreme Court took a series of dramatic rightward steps
that made them the most conservative high bench in a generation.
This week, as the Justices open a new session, the question is
not whether the court will continue along that path but how far
and how fast it will go. Says University of Chicago law
professor Richard Epstein: "Some decisions that people on the
left saw as benchmarks are contestable again."

    That is a chilling thought for civil libertarians -- and a
comforting one for conservatives. With abortion, race
discrimination, religion and obscenity again crowding the
docket, the court is now in a position to press on with much of
Ronald Reagan's unfinished social agenda.

    Though few observers expect wholesale reversals of
established precedents, most would agree with Harvard University
law professor Laurence Tribe that the court is likely to "tune
them down." Says Tribe: "Americans have been accustomed to the
idea that the Supreme Court is a refuge for the disadvantaged,
the dispossessed and the dissident. We are entering an era in
which increasingly the court will be less a court of last
resort." One result is that many would-be federal lawsuits will
be filed in more liberal state courts; another is that legal
disputes may be translated into political battles, to be fought
in the corridors of state legislatures and the halls of
Congress.

    Legal scholars trace the origins of the court's rightward
swing to Richard Nixon's four appointments to the high bench.
Reagan gave the right a working majority by naming his new
Justices -- Sandra Day O'Connor, Antonin Scalia and Anthony
Kennedy -- on the basis of conservative ideology. The three
appear to have forged an alliance with Byron White and William
Rehnquist, whom Reagan elevated to Chief Justice in 1986.
Together, says Geoffrey Stone, dean of the University of Chicago
Law School, they form a "gang of five that increasingly operates
without taking into consideration the views of the other four
Justices."

    The pivot -- at least on issues like abortion and religion
-- seems to be O'Connor. "Liberals have a chance of picking up
her vote in some cases," notes American University law professor
Herman Schwartz, and so many lawyers target her as the vital
swing vote. But that narrow opening may be lost if George Bush
gets to fill a seat. With three of the liberal Justices over 80,
it is possible that one or more places will become vacant in the
next four years. And Bush "has shown nothing to indicate the
move of the court is wrong," says Columbia University law
professor Vivian Berger. Herewith a look at some of this term's
key issues:

    Abortion. Last July the Justices gave states greater power
to regulate the right of abortion. Now they will consider two
cases from Ohio and Minnesota involving the constitutionality
of parental-notification rules for minors seeking to terminate
pregnancies. In another case, they will review an Illinois
statute requiring that abortions be performed in strictly
licensed facilities. Upholding the Illinois law would cripple
small clinics and, in the view of Duke University law professor
Walter Dellinger, could "make abortions nearly impossible to
obtain" in many instances.

    Right to Die. For the first time, the court will delve into
the murky questions surrounding the hopelessly sick when they
consider the case of Nancy Cruzan, a comatose patient in a
Missouri hospital. The high bench is being asked to decide
whether there is a constitutional right of privacy broad enough
to permit her parents to request the withdrawal of feeding tubes
so that she can die with dignity.

    Race Discrimination. The court's conservative turn was
underscored by last term's civil rights and affirmative-action
rulings, which made it more difficult both to prove
discrimination and to obtain preferential treatment. This week
the Justices will explore how broad is the power of federal
courts to remedy discrimination. Taking up a volatile dispute
from Yonkers, N.Y., the court will determine if a judge may
compel city council members to vote for a housing-desegregation
plan. Later, in a case from Kansas City, it will decide whether
a judge may order tax hikes to finance a school-desegregation
plan.

    Religion. The wall separating church from state will be
tested in a case from Omaha that also touches on freedom of
speech. The court will review the constitutionality of the
federal Equal Access Act, which opens up public schools to
student religious groups when any "noncurriculum-related"
student group is allowed to meet on school grounds.

    Obscenity. This week the court will review a Dallas
ordinance that imposes strict licensing and zoning requirements
on sexually oriented businesses. Later this term an Ohio case
will ask whether there is a First Amendment right to possess
lewd photographs of children. In last term's dial-a-porn and
flag-burning cases, the Justices maintained a tolerant
free-speech stance; court watchers are waiting to see what
change may occur.

    Criminal Law. The Justices are again taking up a raft of
cases involving confessions, searches and seizures, as well as
half a dozen death-penalty appeals. Questions of privacy and
personal integrity often dominate criminal cases. But because
they involve drug crimes, say civil libertarians, many recent
decisions have fallen victim to the war against that scourge.
"The rules are going to be applied against all kinds of people
who have nothing to do with drugs," warns New York University
law professor Norman Dorsen, president of the American Civil
Liberties Union. "If the trend continues, many people who say,
`This is a free country, and I can do such and such,' will find
that they can't."

    The court's conservative cast is already affecting the
kinds of disputes that are brought before it. Observes
University of Michigan law professor Yale Kamisar: "The Warren
Court took cases where Government won (in lower courts). This
court seems to be taking cases where Government lost below. It
is putting liberal judges back in line." Civil rights and civil
liberties groups have taken note. Ronald Ellis of the NAACP
Legal Defense and Educational Fund admits that, in order not "to
tempt the fates," his organization has refrained from appealing
cases to the high court and is considering filing more suits in
state courts.

    Steering issues away from federal courtrooms is what the
Justices' conservative thrust seeks to accomplish. "This is a
court that is happy to throw social issues back into Congress's
lap," says University of Virginia law professor A.E. Dick
Howard. "It wants legislatures to spell out how laws should
apply." The attitude appalls many liberals, who argue that the
basic purpose of the Bill of Rights is to protect the weak and
unpopular from the tyranny of majority rule by legislatures. But
the court's deference toward the political branches cheers many
conservatives. "That's democracy," insists court commentator
Bruce Fein. "Let the political process fill its traditional
role."

    This is precisely what seems to be happening. Abortion,
which was thrown out of the judicial closet by last term's
decision granting states more regulatory power, is fast
blossoming into a major electoral issue in state and local races
around the country. The matter is expected to play an important
role in the gubernatorial elections in Virginia and New Jersey
this year. State legislatures, meanwhile, are being hit with a
flood of pro-choice and pro-life proposals.

    Civil rights groups have also been planning a political
assault. The upshot of last term's rulings, says University of
Miami law professor Mary Coombs, was that everyone "exists as
a separate, individual, raceless, genderless person who is
allowed to succeed or fail in terms designed for middle-class
white men." Several U.S. Senators are drafting legislation to
try to overturn some of those discrimination rulings.

    But the effects of the court's move to the right are too
widespread to be easily altered. The changes wrought by the
high bench -- in jurisprudence, legislation and political
strategies -- will continue to affect the course of national
affairs for years to come.


-- Jerome Cramer/Washington and Janice C. Simpson/New York