Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, July 2, 1995 TAG: 9507030150
SECTION: NATIONAL/INTERNATIONAL PAGE: A19 EDITION: METRO
SOURCE: LYLE DENNISTON THE BALTIMORE SUN
DATELINE: WASHINGTON LENGTH: Long
With a combination of power and solidarity seldom seen on the modern Supreme Court, the five most conservative justices swept through the just-ended term, leaving in their wake a major overhaul of the nation's laws.
In nine months of activity rivaling the conservative intensity shown since January by the new Republican-led Congress just across the street, the five justices who held voting control at the court chose to exercise it often and boldly.
Dramatic constitutional change came regularly, right up through Thursday, when the court finished with a flourish and left town for the summer. This was the work primarily of these five: Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.
Just as conservatives in Congress this year have moved energetically to roll back decades of liberal social legislation, the court's conservatives frequently cast their votes together to roll back and even to cast aside liberal constitutional precedents.
Mark Tushnet, a Georgetown University law professor, said the court's term amounted to ``a repudiation of post-New Deal constitutional law: that it is constitutionally permissible for government to act to alter background social conditions. There is a lot to indicate that the majority doesn't agree with that anymore.''
The effect of the conservative trends during the term: a major curtailment of civil rights precedents, especially those in favor of race-based affirmative action programs and race-based legislative redistricting.
Holding together on the other side of the court, with equal fervor and commitment, were the more liberal justices - Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.
To some observers, the conservatives' solidarity - unusual in a court that often scatters in varied ideological positions - was a reaction to the firmness of the liberal bloc's unity.
For liberal observers, the term's overall results had a distinctly threatening tone. ``All in all,'' said Steven R. Shapiro, the American Civil Liberties Union's legal director, ``it's been a disappointing year that ended on an extremely ominous note.''
He was referring to the court's final day, when the justices imposed strict new limits on the creation of black-dominated election districts and eased considerably the longstanding ban on government support of religion.
Conservative organizations appeared to be largely pleased with the results. But Mathew D. Staver, president and general counsel of Liberty Counsel, a legal advocacy group based in Orlando, Fla., cautioned that conservatives cannot rely heavily upon the trends of last term, ``because the decisions are so close: the votes are just one vote apart.''
As the term ended, there was no sign that any justice, from either the court's left or its right, would retire this summer. Another term is likely with the same lineup as the court faces new appeals dealing with gay rights, women's rights and voters' rights.
Should there be a vacancy next year, late in the term or after it concludes next summer, it is doubtful that the Republican-controlled Senate would approve a new Clinton nominee. The Senate could leave the vacancy to be filled after a new presidential election in fall 1996.
There is clear precedent for that: Republican senators filibustered into extinction then-President Johnson's attempt in 1968 to name a replacement for retiring Chief Justice Earl Warren. They saved the chief justiceship for the newly elected President Nixon to fill in 1969 with Warren E. Burger.
While the term just closed did illustrate the conservative justices' power, it also showed the narrowness with which those five hold command - and thus signaled the importance of the court's future as an issue in the presidential campaign.
Of 84 decisions made in the term, 16 were by 5-4 votes, according to a statistical study by David F. Pike, Supreme Court analyst for the Los Angeles Daily Journal, a lawyers' newspaper.
A significant element in those 5-4 votes was the influence of two justices who tended to vote more conservatively during the term: Kennedy and O'Connor, who are considered to be the most moderate within the conservative bloc.
Those two voted together, in the majority, in 11 of the 16 decisions settled by 5-4 votes. One or the other of them was in the majority in all 16. - a clear indication that, no matter who the other four making up a majority were, either Kennedy or O'Connor was necessary to make a fifth.
And, usually, the five-justice majorities that formed in the most important decisions included both of them. That was true of the affirmative-action ruling, the decision limiting the use of race in drawing congressional districts, and the most important ruling on the subject of government subsidies for religion.
Those two helped form the thin majority in one of the most conservative decisions of the term, striking down a federal law that outlawed carrying a gun in or near a school - a warning to Congress that the court may curb social legislation that interfered with states' rights.
by CNB