No Liberals Sit as High Court Begins Its Term

When the Supreme Court opens its fall term today, it will face the usual array of disputes on controversial issues such as school desegregation, graduation prayers and abortion. But while the cases may sound familiar, the high court that hears them will be decidedly different.

For the first time in more than 50 years, the justices will enter the courtroom without a single genuine liberal on the bench. Since the late 1930s, the high court has had a small core--and at times a majority--of liberals who greatly influenced laws concerning individual and minority rights and limits on governmental authority. When the liberals were in control, they struck down laws on segregation, abortion, school prayer and the death penalty. They also made the Supreme Court a powerful force in American life and a symbol of justice for all.

The retirement of Justice Thurgood Marshall--and his likely replacement later this month by Judge Clarence Thomas--will complete a five-year transformation in the high court that Senate Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) says has been “unequaled since the New Deal.”

Between 1937 and 1943, President Franklin D. Roosevelt replaced eight of the nine justices, changing what had been a solidly pro-business court into an instrument for protecting individual liberties and civil rights. The Roosevelt-spawned consensus held intact for nearly half a century.

Since 1986, however, Presidents Ronald Reagan and George Bush have reshaped the court by replacing aging liberals with solid conservatives. Reagan chose William H. Rehnquist, the most conservative member of the court, to replace the outgoing Chief Justice Warren E. Burger, and then named another conservative, Antonin Scalia, to fill the vacant seat.

Those appointments were followed over the next four years by the successive retirements of Lewis F. Powell Jr., William J. Brennan Jr. and Marshall--a core that supported abortion rights, affirmative action for minorities, free speech and the separation of church and state. They in turn were replaced by conservatives Anthony M. Kennedy and David H. Souter--with Thomas awaiting confirmation by the Senate.

But if the liberal era has ended, it isn’t clear what will come next. Marshall, for one, predicts that the new conservative bench will mount a “far-reaching assault . . . on scores of established constitutional liberties.” If the forecast proves correct, the right to abortion, the strict separation of church and state, the forced desegregation of public schools and the use of “affirmative” preferences for minorities most likely will end quickly, too.

But many legal scholars, both liberals and conservatives, believe that the Rehnquist court will avoid abrupt and radical changes and merely trim back such precedents gradually rather than dramatically overturning settled principles of law.

“I think we’ll see mostly incremental changes,” says University of Minnesota law professor Daniel Farber, a former clerk to Justice John Paul Stevens. “I don’t think Rehnquist wants to make bold and sweeping pronouncements.”

University of Chicago law professor Michael McConnell doubts that the justices want to “revisit” most of what has been done over the last 30 years. “The biggest difference is that there will not be further movement in the liberal direction,” says McConnell, a former Reagan Administration attorney.

All these predictions depend largely on the behavior of justices such as Souter and, potentially, Thomas, whose views remain unknown. In a generally low-key first term, Souter lined up with Rehnquist on criminal cases, but his views still are largely unknown on issues such as religion, affirmative action and abortion.

During this term, the court is unlikely to face a direct challenge to the Roe vs. Wade ruling that made abortion legal. Lawmakers in Utah and Louisiana passed measures earlier this year that have made abortion a crime in those states. Challenges are now being considered in the lower federal courts.

Attorneys expect at least one of those cases to reach the Supreme Court next year, with a ruling by the justices likely in 1993. “George Bush will probably be spared the political discomfort of having his court overturn Roe vs. Wade before the (November, 1992) election,” says Rachael N. Pine, an American Civil Liberties Union lawyer who is involved in the legal challenge to the two laws.

But this fall, the justices will consider a key dispute between the anti-abortion “Operation Rescue” and the operators of abortion clinics. Rather than simply picket and protest, members of Operation Rescue--led by a small group of activists--break into clinics, block the entrances and intimidate doctors and nurses.

While these actions violate state and local laws against trespass, assault and breaking-and-entering, women’s rights activists have gone to federal courts seeking a broad injunction that will halt the “organized mob” attacks on clinics throughout a region. They have relied on the federal statute that is most relevant: the Civil Rights Act of 1871, known popularly as the Ku Klux Klan Act.

In the years just after the Civil War, mobs of whites, often disguised in capes and white hoods, attacked newly freed slaves when they sought jobs or the right to vote. Since local authorities in the South would not, or could not, stop the attacks, Congress in 1871 made it a violation of federal law for “two or more persons . . . (to) conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of” their rights under the Constitution or federal laws.

Since 1989, a half-dozen federal courts have relied on the 1871 statute to halt blockades by Operation Rescue. During the summer, U.S. District Judge Patrick F. Kelly in Wichita, Kan., used the law as a basis for ordering federal marshals to protect the safe operation of abortion facilities there.

But the Bush Administration has joined lawyers for Operation Rescue in urging the justices to rule that federal judges have no authority to intervene in abortion disputes based on the 1871 law.

In a brief to the court, U.S. Solicitor Gen. Kenneth W. Starr argues that the law only covers a “class-based animus,” such as whites attacking blacks. By contrast, the mob tactics used by Operation Rescue “are targeted at the abortion process itself” rather than at the women using the facilities. The clinics employ men as well as women, he notes, and the anti-abortion zealots include persons of both sexes.

Representing the clinics, lawyers for the NOW (National Organization for Women) Legal Defense Fund say that the case “involves a mass conspiracy to deny women the freedom to exercise their constitutional rights”--a situation that they contend is precisely the kind of mob action that the Ku Klux Klan Act was intended to halt.

Since the case of Bray vs. Alexandria Women’s Health Clinic turns on the meaning of a federal law, not the constitutional right to abortion, what the reconstituted court decides on the case will not necessarily indicate how it will rule on the broader abortion issue. But the outcome could well have a broad, practical impact on the availability of abortions. Women’s rights advocates fear that without the protection of federal courts, Operation Rescue demonstrators will succeed in shutting down abortion facilities, at least for a time.

In another case, the court will reconsider the line between the separation of church and state in a Providence, R.I., case involving the delivering of a prayer during an invocation at a junior high school graduation. A federal appeals court in Boston, relying on a 1971 high court opinion, ruled that the offering of prayers in such circumstances violates the First Amendment.

But the Bush Administration has urged the court to scrap its earlier precedents and allow “noncoercive” religious ceremonies in the schools. In 1989, four members of the court--Rehnquist, Scalia, Kennedy and Byron R. White--accused the once-dominant liberal bloc of “an unjustified hostility toward religion.” They said that they would uphold “government policies of accommodation, acknowledgement and support for religion.”

With the addition of Souter and--if confirmed as expected--Thomas, the conservative bloc may have a majority to rule that the government may “acknowledge and aid religion,” as Kennedy put it in his 1989 dissent. If so, the Providence school case, known as Lee vs. Weisman, may lead to a dramatic recasting of the First Amendment.

For many years, Rehnquist has sought to remove federal judges from overseeing the desegregation of the public schools and state universities. In the fall, the justices will consider two cases that could allow the chief justice to accomplish his goal.

For 22 years, the DeKalb County, Ga., school system has operated under a court desegregation order. Because of a growing black population in the southern part of the school district, a federal appeals court in Atlanta ruled that the schools still are segregated and must take further action to alter the situation. But attorneys for the school board say that they should not be required to make up for a shift in the population.

The Bush Administration sides with the school board in the case, Freeman vs. Pitts, and is urging the justices to end school desegregation decrees after the local officials have complied for at least three years.

Meanwhile, the court will decide whether Mississippi has done enough to desegregate its once rigidly segregated colleges and universities. Although its eight state colleges now open their doors to all, its five historically white universities enroll 99% of the state’s white students, while 71% of Mississippi’s black students attend the three traditionally black universities.

The Bush Administration says that the state should be required to do more to desegregate its colleges. In a separate appeal, which the court also has agreed to hear, black plaintiffs contend that the state should be required to do more to upgrade the three historically black universities. A decision in the case, Ayers vs. Mabus, could affect other Southern states.

Finally, the court will plunge into the national debate over “hate speech” by deciding whether a city may make it a crime to burn a cross, display a Nazi swastika or take other actions that offend others on the basis of race, color, creed, religion or gender. Lawyers for a 17-year-old youth who burned a cross on the lawn of a black family in St. Paul, Minn., say that his act is akin to burning a flag and should be protected as a form of free speech. (They agreed separately that the youth can be prosecuted for trespassing and malicious mischief.)

But the case of R.A.V. vs. St. Paul has a rather confused history and may not yield a clear ruling on the hate-speech issue.

Through these and other key cases this year, liberals will be holding their breath.

“By the end of this term, we will know a lot more about this court,” says Steven Shapiro, the American Civil Liberties Union’s associate legal director. “We know this court is conservative, but we don’t yet how far and how fast (it) will move.”

The Court’s Fall Calendar

Here are some key cases that the Rehnquist Court will consider this fall: * RELIGION: May a cleric invoke the name of God during a public school graduation ceremony? The case of Lee vs. Weisman gives the court a chance to consider the separation of church and state doctrine.

* SCHOOL DESEGREGATION: When has a formerly segregated school system satisfied its duty under the 1954 Brown vs. Board of Education ruling to end all vestiges of segregation? The case of Freeman vs. Pitts gives the Rehnquist Court a chance to declare an end to the era of forced school desegregation.

* ABORTION CLINICS: Can federal judges use the Ku Klux Klan Act of 1871 to stop anti-abortion zealots who seek to close down abortion facilities? The case of Bray vs. Alexandria Women’s Health Clinic may provide an answer.

* HATE CRIMES: Can a city make it a crime to demonstrate hate or bigotry through laws that punish those who burn a cross or display a swastika? The case of R.A.V. vs. St. Paul requires the court to again consider whether the First Amendment’s guarantee of free speech extends to loathsome acts.

* CIGARETTES: Does the federal law requiring that tobacco companies put warning labels on cigarette packages block smokers or their families from seeking damages in state courts for misleading advertising? Until now, the federal courts have shielded the tobacco companies from these claims. But the justices have been reluctant to rule that federal laws preempt claims in state courts. The case of Cipollone vs. Liggett Group will decide the issue.

* CRIME VICTIMS: Can a state prohibit publishers from paying royalties to a criminal for an account of his crimes? New York, California and most other states have a so-called “Son of Sam” law that ensures that crime victims, not criminals, will benefit from any money earned through books, articles or movies. But in Simon & Shuster vs. the New York Crime Victims Board, the publishers say these laws violate the First Amendment’s free-speech guarantee.

* ELECTIONS: Can states ban the display of campaign literature and soliciting for votes within 100 feet of polling places? No, said the Tennessee Supreme Court, ruling that such a ban violates the First Amendment. In Burson vs. Freeman, the court will consider whether this restriction--which is common to nearly every state--is a reasonable limit on the freedom of speech.

* IMMIGRANTS: Can the Immigration and Naturalization Service forbid deportable immigrants from working during the months or years while their cases are processed? A federal appeals court in California said no, but the Bush Administration contends that the 1986 law was intended to prevent immigrants from taking jobs that could be held by U.S. citizens. The case is INS vs. National Center for Immigrant Rights.