Observers Try to Weigh Souter Role : Law: The new justice could solidify the high court’s conservative bloc or follow a more moderate course. Upcoming cases may provide some clues.

The Supreme Court opens its fall term Monday facing a looming question: Will it finally have a true conservative majority?

For the first time since 1956, the justices will take the bench without William J. Brennan Jr., the architect of the liberal court that a generation of Americans came to know. It was a court that promoted school desegregation, abolished school prayer, protected a woman’s right to choose abortion, insisted on a strict separation of church and state and upheld job policies that gave an edge to blacks and other minorities.

To his young clerks, Brennan held up his hand, fingers spread, to explain his formula: “All you need here is five votes,” he would say.

But in recent years, as a procession of Republican appointees came to the court, Brennan had more and more trouble finding five votes. Indeed, since 1988, with the arrival of President Ronald Reagan’s third appointee--Anthony M. Kennedy--it has been Brennan’s conservative rival, Chief Justice William H. Rehnquist, who has generally enjoyed a five-vote majority.

Now--by mid-October, barring any unexpected developments--51-year-old David H. Souter will join the court as its ninth justice, and some analysts are saying Rehnquist should then have no trouble finding five votes to mold a solidly conservative coalition. (The Senate is expected to approve Souter’s nomination this week.)

Already, Rehnquist has used his new majority to help press the goals of the court’s conservative revolution, narrowing the impact of anti-discrimination laws and giving states more authority to limit abortion. But at times, the rightward push has been sidetracked--when Justices Sandra Day O’Connor and Byron R. White have either refused to go along with sweeping Rehnquist opinions or even switched sides to join with Brennan.

On June 27, for example, the 84-year-old Brennan, speaking in a weak, gravelly voice, read his final opinion--a 5-4 ruling upholding a federal policy that gave blacks, minorities and women a slight preference in seeking broadcast licenses. Without explanation, White had joined in the Brennan opinion. Rehnquist, for his part, glared straight ahead.

Now, however, that sort of scene is not likely to be repeated. With Souter’s support, Rehnquist figures to have four--or perhaps even five--justices on his side in the most contentious cases. And there is no compelling leader, like Brennan, to help piece together a winning five-vote coalition for the court’s rapidly shrinking liberal bloc.

With Souter’s support in the coming term, the Rehnquist court could call a halt to busing for school desegregation, forbid doctors from telling needy pregnant women about abortion and give states the authority to send drug users to prison for life.

By the end of the term, the court might also face a direct challenge to the Roe vs. Wade ruling on abortion. If Souter sides with Rehnquist, the constitutional right to abortion will probably be wiped off the books.

But that may not prove as predictable as some critics have suggested. Indeed, Souter’s testimony before the Senate Judiciary Committee raised some serious doubts as to how reliably Rehnquist will be able to count on the New Hampshire jurist.

Staffers on the Judiciary Committee dubbed Souter’s performance a “confirmation surprise.” They had spent weeks reading Souter’s unswervingly conservative writings as a New Hampshire attorney and judge, only to hear him testify to moderate--even liberal--views on constitutional issues.

Law professors who closely follow the Supreme Court say they are perplexed: Is Souter a conservative who will dutifully support the Rehnquist philosophy, or is he a closet moderate who will occasionally follow the liberal path Brennan laid down?

University of Minnesota law professor Daniel Farber, himself a former Supreme Court clerk, says the New Hampshire judge sounded “somewhat like a Lewis Powell”--referring to the former justice from Virginia, who established a conservative record on crime but often voted with the liberals on civil rights and civil liberties cases. Farber predicts Souter “may be willing to play an active role in defending individual rights.”

But Georgetown University law professor Thomas Krattenmaker argues that Souter was appointed only because he had a faithfully conservative record in New Hampshire. “I wouldn’t take the transcript of those hearings all that seriously,” he cautioned.

Added Louis M. Seidman, a colleague at Georgetown: “There must be a tremendous temptation to go up there and say things that people want to hear.”

Seidman and other skeptics point to Justice Kennedy’s example. During his confirmation hearings in 1987, Kennedy told senators he supported a right to privacy, had an “open mind” on the abortion issue, saw firsthand the value of affirmative action and believed court precedents were entitled to “very great weight.” But, after being confirmed unanimously, Kennedy has voted uniformly with the court’s conservatives, including in their efforts to overturn the right to abortion and to outlaw affirmative action.

During Senate hearings earlier this month, Souter displayed a thoughtful tone and a thorough knowledge of the law. But he left unanswered how he will vote on close cases involving abortion, civil rights, crime and the death penalty--questions that this coming court term almost certainly will be called on to answer.

Here are a few of the major cases likely to come before the court this term:

SEGREGATION: When can a school board end its mandatory desegregation effort? In 1968, the court ruled that legally segregated school districts had a duty to desegregate and to wipe out all “vestiges” of discrimination. But the justices still have not made clear when, or if, that duty comes to an end. About 500 school districts are still under court control, the Justice Department says.

The Oklahoma City school district was found guilty of segregation in 1971, and a federal judge ordered the busing of students as a remedy. Six years later, the judge said the school system had fully complied with his order and terminated all constraints. But last year, an appeals court in Denver ruled that the school board may not go back to a neighborhood-school plan because doing so would resegregate its elementary schools.

Lawyers for Oklahoma City, backed by the Bush Administration, say the school board’s legal duty has ended. But the Legal Defense Fund of the National Assn. for the Advancement of Colored People argues that the board has a continuing duty to maintain desegregated schools. The case of the Board of Education of Oklahoma City vs. Dowell will be argued Tuesday. Souter will probably miss the argument, so he will not get a chance to vote on the case unless the justices split 4 to 4. In that event, the court would be expected to order new oral arguments.

ABORTION: Can the Bush Administration insist that doctors in federally funded family planning clinics not discuss abortion with low-income pregnant women? Each year, about 5 million women and girls go to subsidized clinics for medical checkups and for information about contraception and pregnancy.

By law, these clinics may not use federal funds for abortion. Two years ago, however, the Reagan Administration issued strict new rules forbidding doctors from referring their patients to abortion facilities--or even telling them about abortion.

Those regulations, which have been kept on hold, are being challenged in the Supreme Court as an unconstitutional infringement on the free speech rights of doctors and the abortion rights of women. Lawyers for the Bush Administration counter that the government has a right to have a say in how its money is spent and to require that these doctors “value childbirth over abortion.” The case of Rust vs. Sullivan will be heard on Oct. 30.

SEX DISCRIMINATION: Can a company exclude women from dangerous jobs to protect a potential fetus? The Johnson Controls Co., a battery manufacturer based in Milwaukee, forbids women up to age 50 from holding jobs in its factories because they are likely to be exposed to lead. The company says this “fetal protection policy” is justified because it protects potential unborn children. An appeals court in Chicago agreed.

But lawyers for the women say it is a “female-exclusion” policy that blatantly violates federal laws against sex discrimination. If the policy is upheld, they say, up to 20 million jobs could be closed to women because of potential danger to their offspring. The case of International Union vs. Johnson Controls will be heard Oct. 10. (Regardless of how the court rules, the fetal protection policy is illegal in California under state anti-discrimination laws.)

DRUGS: Can a state send a first-time drug offender to prison for life without the possibility of parole?

Michigan did just that to Ronald Harmelin after his car was stopped in 1986 and he was found to be carrying about 1 1/2 pounds of cocaine. A new Michigan drug law--said to be the nation’s stiffest--requires judges to impose a life prison term for those convicted of possessing such a large amount of cocaine.

Lawyers for the American Civil Liberties Union are challenging the law as “cruel and unusual punishment,” arguing that the sentence is grossly disproportionate to the crime. The case of Harmelin vs. Michigan will be heard Nov. 5 and will test whether the court will put any constitutional limits on the new wave of anti-drug laws.

DEATH PENALTY: Can a state force a Death Row inmate to take anti-psychotic drugs so it can execute him?

In 1986, the high court said an insane inmate may not be put to death. Michael Perry, a Death Row inmate in Louisiana, is psychotic. Doctors say his insanity can be treated with medication. State prison officials want to medicate Perry forcibly so he may be executed.

But lawyers for Perry are challenging this move, contending that the Constitution does not allow a person to be forcibly medicated so he can be executed. The case of Perry vs. Louisiana will be heard Tuesday and will test how far the court will go in upholding a state’s administration of the death penalty.