High Court Puts Its Faith in 'Laboratory of the States' : NEWS ANALYSIS


In its most important decision of the term that ended last week, the Supreme Court upheld Missouri's limits on the so-called "right to die" in the case of a comatose young woman.

Last year's leading decision, also in a Missouri case, upheld the state's limit on abortion in public hospitals.

Yet, neither decision endorsed Missouri's "right to life" philosophy nor tried to set national rules for the termination of a life or the termination of a pregnancy.

Rather, in these cases and many others, the Supreme Court under Chief Justice William H. Rehnquist gave state and local authorities more freedom to determine their own policies. Unless a state policy violates the clear words of the Constitution--which itself says nothing directly about privacy, abortion or a right to die--the Rehnquist court is inclined to uphold the states.

Although this is a conservative approach to constitutional law, the results may be liberal in most parts of the nation. California and most other states, following the wishes of the majority, have maintained liberal policies on abortion and the right to die. Nonetheless, Missouri is now free to move toward a "right to life" philosophy that seeks to protect and prolong life in nearly all instances.

This year, like last, the court usually sided with legislatures, school boards, the police or Congress. Whether the issue was the death penalty, drug crimes, religion or abortion, the court generally upheld governmental authority over broad claims of individual rights.

Civil libertarians complain that the court is abdicating its historic role of protecting individual rights against intrusions by the government.

"Both this year and last, the Rehnquist court has shown a willingness to defer to majoritarian rule when basic constitutional rights are at stake," said Steven Shapiro of the American Civil Liberties Union.

But Justice Sandra Day O'Connor, in a concurring opinion in the right to die case, summed up the prevailing conservative philosophy:

"No national consensus has yet emerged" on how to decide, or who should decide, when medical treatment can be ended for the hopelessly ill, she said. "Today we decide only that one state's practice does not violate the Constitution. The more challenging task of crafting appropriate procedures . . . is entrusted to the 'laboratory' of the states."

Rehnquist and O'Connor said it is better to rely on the "laboratory of the states"--a phrase coined by Justice Louis D. Brandeis--to work out the intricate rules for when life can end, rather than having federal judges set the rules for all.

This standoffish approach prevailed in most of the court's major rulings. In its 1989-1990 term, for example, the court ruled that:

--Drug agents may operate freely outside of U.S. borders without the need for search warrants.

--Police may force a driver to submit to a sobriety test even though they have no reason to suspect drunkenness.

--States may require doctors to notify at least one parent of a teen-ager who wants an abortion.

--High school officials may allow students to meet on campus for Bible reading.

--States may make it a crime to possess child pornography.

--Prison officials may forcibly medicate disturbed inmates.

In these decisions and more, Rehnquist gained the support of the three appointees of former President Ronald Reagan--O'Connor, Antonin Scalia and Anthony M. Kennedy--plus Byron R. White, a 1962 appointee of John F. Kennedy.

Last term, the five conservatives voted as a bloc, not only narrowly defining constitutional rights but also restricting the scope of federal civil rights laws.

But this year, White switched sides on several crucial constitutional cases, creating a majority for the court's 84-year-old liberal leader, Justice William J. Brennan Jr. These rulings declared:

--Elected officials may not use politics as a basis for handing out routine government jobs.

--Federal judges may order city or state officials to raise taxes to pay for desegregation decrees.

--Congress may order minority-preference policies in awarding federal contracts.

Again this year, Brennan wrote a 5-4 opinion upholding flag burning as a form of protected free speech, a ruling joined by Scalia and Kennedy.

With this perplexing mix of decisions, commentators affixed conflicting labels to the Rehnquist court.

Former federal appeals Judge Robert H. Bork, who was rejected by the Senate when Reagan nominated him to the Supreme Court, said that the rulings demonstrate that the Rehnquist court is "really a moderate-to-liberal court."

The ACLU's Shapiro said that it is "still a conservative court, moving in a generally conservative direction."

What most surprised many legal experts was the very unpredictability of the court.

"The streak of conservative victories came to a sudden stop," said Northwestern University law professor Lawrence Marshall. "Last year was a slam dunk for the conseratives, so some of what we saw this year comes as a shock."

Several recent rulings shocked conservatives. "It's clear there's no consensus on the major issues--abortion, religion and civil rights. It's still very fluid," said Richard Samp, chief counsel of the Washington Legal Foundation.

On abortion, the court still appears split 4 to 4 to 1. Rehnquist, White, Scalia and Kennedy are ready to overturn the constitutional right to abortion. Brennan, Thurgood Marshall, Harry A. Blackmun and John Paul Stevens strongly support the right to abortion.

In the middle sits O'Connor, who says that the states may regulate abortion so long as they do not put an "undue burden" on a woman's right to end a pregnancy. So far, O'Connor has not been forced to decide a case in which a state has directly blocked a woman's choice to abort.

On the role of religion in public life, the court lineup is much the same. The four liberals insist that the Constitution demands a "separation of church and state." The four conservatives say that religion in the public schools or elsewhere is not a problem unless the government favors one religion over the others.

O'Connor takes a middle position. She says that the government may not do anything--such as putting a creche in city hall--that appears to "endorse" a particular religion or religion in general.

Affirmative action stands by a different 4-4-1 split. Four conservatives--Rehnquist, O'Connor, Scalia and Kennedy--say that the Constitution's guarantee of "equal protection of the laws" means that the government may not discriminate in favor of blacks and against whites. The four liberals--Brennan, Marshall, Blackmun and Stevens--say that the government may in some instances favor blacks over whites because of this nation's history of racial discrimination.

Last year, White joined the conservatives in ruling that state and local governments may not use minority-preference policies. But last week, he voted with the liberal bloc to say that Congress and the federal government can give preferences to minorities.

White, 73, did not explain why he switched sides on affirmative action, but legal experts noted that he generally upholds acts of Congress. "White has long had the view that Congress can do many things (under the Constitution) that states cannot do," said Georgetown University law professor Louis M. Seidman.

Besides last week's affirmative action ruling, the most surprising and sweeping ruling of the term grew out of an unlikely case--a dispute over whether Oregon could fire two drug counselors who chewed peyote as a part of religious ritual of Indians.

The court had no trouble upholding Oregon's decision to dismiss the two counselors. But Scalia wrote a broad opinion declaring that religious adherents do not have a constitutional right to be exempt from general laws that conflict with their religious beliefs.

In the past, the court had said that Amish children may be exempted from compulsory school laws and Seventh Day Adventists may not be required to work on Saturdays. Only when the government had a "compelling interest"--such as need to get medical care for the dying child of a Christian Scientist--could government officials infringe on a person's deeply held religious beliefs.

Scalia announced a new approach. The court will no longer force the government to bend its policies or make an exception to a general rule to protect the beliefs or practices of a religious adherent.

In dissent, O'Connor said that this rule "is incompatible with our nation's fundamental commitment to individual religious liberty."

SUPREME COURT HIGHLIGHTS In its 1989-1990 term, the Supreme Court received nearly 5,500 appeals and issued written opinions in 129 cases. Here are the highlights, along with the names of the cases and the votes by the nine justices. CIVIL RIGHTS

Congress may order minority preferences in awarding federal contracts and benefits. (Metro Broadcasting vs. FCC, 5-4)

As a last resort, a judge may order local or state officials to raise taxes to pay for a valid desegregation decree. (Missouri vs. Jenkins, 5-4)

Judges may not fine elected officials for opposing a court decree until all other means of persuasion have been exhausted. (Spallone and Yonkers councilmen vs. U.S., 5-4)


Public high schools that permit extra-curricular

clubs to meet on campus must also allow a student-sponsored Bible club. (Board of Education vs. Mergens, 8-1)

Churches do not have a religious right to be exempt from a state sales tax. (Swaggart vs. California, 9-0)


Congress may not make it a crime to burn a U.S. flag. (U.S. vs. Eichman, 5-4)

Public officials may not hire, fire, transfer or promote low-level employees based on politics. (Rutan vs. Republican Party of Illinois, 5-4)

States may make it a crime to possess child pornography. (Osborne vs. Ohio, 6-3)


News columnists and other commentators may be sued for libel for statements of opinion that are false and malicious. (Milkovich vs. Lorain Journal, 7-2)

Detroit's two daily newspapers may operate jointly without violating antitrust laws. (Michigan Citizens vs. Thornburgh, 4-4)


The Fourth Amendment does not cover searches outside of U.S. borders. (U.S. vs. Verdugo-Urquidez, 5-4)

Police may briefly stop motorists at sobriety checkpoints, despite having no evidence that a particular motorist is impaired. (Michigan State Police vs. Sitz, 6-3)

Police may stop and question motorists based on anonymous tips as long as some of the allegations prove reasonably accurate. (Alabama vs. White, 6-3)


Police may arrest suspects and ask "routine booking questions" without advising them of their right to remain silent. (Pennsylvania vs. Muniz, Brennan, 8-1)

Police may trick suspects into confessing by putting undercover agents into their jail cell. (Illinois vs. Perkins, Kennedy, 8-1)


Accused child molesters do not have an absolute right to confront their accusers in court, and so child victims may testify via closed-circuit television. (Maryland vs. Craig, 5-4)

Doctors and child-abuse investigators may not generally testify in court as to what victims of abuse told them. (Idaho vs. Wright, 5-4)


California's death sentencing law is constitutional, despite allegations that jurors are called upon to mechanically "weigh" the evidence rather than make personal judgments. (Boyde vs. California, 5-4)

Death Row inmates may not use new Supreme Court rulings to challenge their convictions and sentences. (Butler vs. McKellar, 5-4)


States may require clear and convincing proof of a desperately ill patient's wish to die before medical treatment may be ended. (Cruzan vs. Missouri, 5-4)

The federal government, not the states, has full authority to regulate the flow of water from rivers and streams into hydroelectric power plants. (California vs. FERC, 9-0)

Governors may not block the Pentagon from sending state national guard units to combat areas. (Perpich vs. Dept. of Defense, 9-0)

Hospitals may sue states in federal courts to get "reasonable" reimbursement for treating Medicaid patients. (Wilder vs. Virginia Hospital Assn., 5-4)


Pensioners who lose benefits because they are advised wrongly by government officials may not sue to recover the money. (OPM vs. Richmond, 7-2)

Migrant workers may sue employers in federal court if they are injured on the job, even if they also have state unemployment benefits. (Adams Fruit vs. Barrett, 9-0)

The White House Office of Management and Budget may not block congressionally mandated rules requiring that workers and consumers be warned of toxic chemicals. (Dole vs. Steelworkers Union, 7-2)


Corporations may not be sued for price-fixing just because they have insisted that dealers lower prices. (ARCO vs. USA Petroleum, 7-2)

State attorneys general may move to break up mergers that threaten to reduce competition and harm consumers. (California vs. American Stores, 9-0)

Corporations that file for bankruptcy may be forced to keep paying their pension obligations. (Pension Benefit Guaranty Corp. vs. LTV, 8-1)

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