TIME: Almanac 1990/1990 Time Magazine Compact Almanac, The (1991)(Time).iso/time/100989/10098900.026

Text File | 1990-09-18 | 9KB | 158 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