Deadlock Feared as High Court Returns : 4-4 Split May Leave Lower Rulings on Abortion, Execution Intact

An evenly divided Supreme Court returns to work today facing potential 4-4 deadlocks on a series of issues that have split its liberal and conservative members before.

While the Senate considers whether to fill the court’s ninth seat with Judge Robert H. Bork, the eight remaining justices will hear cases on abortion regulations for minors, rent control, a required moment of silence in schools, the death penalty for juveniles and job rights for homosexuals.

If the justices split 4 to 4 on these cases, the high court will issue no decision, and the lower court’s ruling will stand.

Many court observers say they do not expect the court to make an abrupt change in law during this period of transition.

“I don’t see a heck of a lot of great significance coming this fall,” said University of California, Berkeley, law dean Jesse Choper. Instead, he said, the court has before it cases that test the middle ground on controversial, well-litigated issues such as abortion and school prayer.

That would give William H. Rehnquist little opportunity in his second year as chief justice to steer the court in a conservative direction. In Rehnquist’s first year, he failed to secure a conservative majority on most issues except criminal cases. Instead, the court’s senior liberal, William J. Brennan Jr., won most of the key civil rights and civil liberties cases.

Rehnquist was joined frequently last year by Antonin Scalia, who joined the court at the same time Rehnquist was elevated to chief justice, and by Byron R. White and Sandra Day O’Connor. Brennan could typically count on the support of Harry A. Blackmun, Thurgood Marshall and John Paul Stevens.

The ninth justice, Lewis F. Powell Jr., provided the key swing vote on many issues. But Powell retired at the end of the court’s term on June 26 and, until someone replaces him, court observers expect 4-4 splits to prove common on sensitive issues.

Even if Bork gains Senate confirmation--and that appears to be an increasingly unlikely prospect--he will miss some of the cases to be argued early in the new term. And if he is defeated and President Reagan must find a new nominee, the delay could leave the court unable to decide its toughest cases throughout its 1987-1988 term.

Senate leaders say they do not expect a floor vote on whether to confirm Bork until late October or early November. Thus, even if he is confirmed, he probably would miss the 40 cases to be argued by Nov. 10.

In an average year, the high court decides about 160 cases, and 20 or 30 of these are typically decided on 5-4 votes. The voting in several cases to be heard this fall is expected to split the court along these lines:

--Can Illinois require a minor girl to wait 24 hours after she notifies her parents before she can get an abortion (Hartigan vs. Zbaraz, 85-673)?

A federal appeals court in Chicago said no, concluding that the required delay was an undue burden that was intended to dissuade girls from having abortions. The state appealed, arguing that the delay allows for “meaningful consultation” between the girl and her parents.

The California Legislature recently passed a similar measure, which has not yet been tested in court. O’Connor probably holds the key vote on the Supreme Court, since she has suggested in past cases that women have a right to an abortion but that the state has some authority to regulate the practice.

--Can New Jersey require its public schools to open each day with a moment of silence for “private contemplation or introspection” (Karcher vs. May, 85-1551)?

An appeals court in Philadelphia said no, ruling that the law had no other purpose than a religious one. The former Speaker of the state Assembly appealed to the Supreme Court, arguing that the law does not mention prayer or religion.

In 1985 the high court rejected an Alabama law calling for a moment of silence for voluntary prayer, but five members also said that a clearly non-religious law could be approved. This case could be dropped without a decision, however, because the court could conclude that the former Speaker has no legal standing to bring the appeal.

--Can Oklahoma execute a man who committed a murder at age 15 (Thompson vs. Oklahoma, 86-6169)?

A state appeals court said yes, but his attorneys contend that imposing the death penalty for a crime committed as a juvenile is cruel and unusual punishment banned by the Eighth Amendment.

The high court majority has repeatedly upheld capital punishment but it has also limited its application. Two years ago, the court ruled that insane people could not be executed.

--Does a city rent-control law amount to a government taking of private property (Pennell vs. City of San Jose, 86-753)?

The California Supreme Court, arguing that it does not, last year upheld a San Jose rent-control law and concluded that it allowed landlords reasonable rate increases.

The apartment owners appealed, citing the Fifth Amendment, which says that private property may not be “taken for public use without just compensation.” Rent control prevents them from realizing the full economic value of their property, they say, and it represents a form of government subsidy to renters that should be paid by all taxpayers, not just by landlords.

In two other cases involving zoning in June, the Supreme Court invoked the Fifth Amendment in ruling for property owners.

--Can the CIA fire a homosexual employee without explanation (Webster vs. Doe, 86-1294)?

An appeals court in Washington said it could not. A clerical employee was dismissed soon after he acknowledged his homosexuality to a supervisor, and the appeals court said the CIA could fire homosexual employees only for national security reasons, not because of a blanket policy against employing homosexuals.

The Reagan Administration is appealing the ruling, contending that the CIA should not have to answer in court for its employment policies.

--Can the government deny visitors’ visas to foreign political activists (Reagan vs. Abourezk, 86-656)?

The federal appeals court in Washington, despite a dissent by Bork, said it could not. The majority said the government must show that the alien’s activities here would hurt American interests. Bork argued that, because the mere presence of a leftist activist could harm U.S. interests, the State Department should have the authority to ban such people. The Reagan Administration, citing Bork’s dissent, has appealed.

Altogether, the high court has agreed so far to hear arguments in 91 cases in its 1987-1988 term. Another 1,200 appeals have piled up over the summer, including cases on drug testing of government employees and the constitutionality of the independent counsel.

Several cases to be heard this fall, though not politically divisive, could settle important points of law. They include:

--In a case of sexual abuse of a child, may a judge allow the child to testify from behind a screen (Coy vs. Iowa, 86-6757)? The Iowa Supreme Court said yes, but the defendant says his right to confront a witness has been denied.

--May a federal court step in to resolve a custody dispute when the parents live in different states (Thompson vs. Thompson, 86-964)? The federal appeals court in San Francisco said no, because matters of family law are the province of state courts. But a Los Angeles doctor has appealed on the basis of a new federal law designed to prevent parental kidnaping.

--Do the student editors of a school newspaper have a right to freedom of the press, or may their principal decide what will be published (Hazelwood School District vs. Kuhlmeier, 86-836)? An appeals court in St. Louis ruled for students, but school officials contend that they, not the students, control the paper.

--Must Hustler magazine pay damages to the Rev. Jerry Falwell for a parody that the Baptist minister says caused him “emotional distress” (Hustler vs. Falwell, 86-1278)? The appeals court in Richmond, Va., said yes, but attorneys for the magazine contend that satire of public figures is protected by the First Amendment.

--May stockholders who sold their shares sue a corporate board of directors that denied knowledge of merger talks a few months before the actual merger (Basic Inc. vs. Levinson, 86-279)? An appeals court said a misleading statement by the corporation gave stockholders a right to sue, but the corporate board contends that the statement was accurate because the merger talks were still in a preliminary stage at the time.

--May the District of Columbia prohibit demonstrators from picketing or carrying critical signs within 500 feet of a foreign embassy (Boos vs. Barry, 86-803)? The appeals court in Washington, in an opinion written by Bork, said the District of Columbia government had such power because of the need to protect the dignity of ambassadors. Political activists who are appealing argue that the First Amendment protects their right to engage in peaceful demonstrations.

--May a state forbid store owners from displaying sexually explicit though not obscene books or magazines because they might be seen by juveniles (Virginia vs. American Booksellers Assn., 86-1034)? An appeals court in Richmond, ruling against the state of Virginia, said the law limited owners’ rights under the First Amendment. Virginia is appealing, contending that its law is a legal means of protecting juveniles.

--Can the government charge a newspaper reporter with a violation of insider-trading laws for telling a stockbroker about a story that will soon appear (Carpenter vs. United States, 86-422)? The appeals court in New York said yes, but lawyers for R. Foster Winans, formerly a reporter for the Wall Street Journal, contend that securities laws apply only to inside information about stocks, not the details of a newspaper’s publishing plans.