High Court Returns Amid Great Uncertainty : Judiciary: As Election Day draws near, liberals and conservatives alike worry about its effect on the court’s future.

The Supreme Court returns to the bench this week, one eye trained on pending cases involving religion, free speech and abortion picketing and the other on the race for the White House and its implications for future court appointments.

In their last term, the justices by one vote stopped short of overturning landmark decisions that established a woman’s right to abortion and banned official prayers in the nation’s public schools.

But that one vote almost surely will be up for grabs after a year or so. Justice Harry A. Blackmun, the 83-year-old author of the Roe vs. Wade abortion rights decision, has been telling friends that the 1992-93 term almost surely will be his last.

“The most important event for the Supreme Court this year will be what happens on Nov. 3,” said Richard K. Willard, a Justice Department attorney during the Ronald Reagan Administration.

In addition to Blackmun, Justices Byron R. White, 75, and John Paul Stevens, 72, are considered likely to retire during the next four years.

Republican presidents have chosen every new justice for the high court since 1967. Even so, conservatives remain deeply frustrated that their dominance of the White House has not resulted in more sweeping change at the Supreme Court.

Eight of the nine current justices are Republican appointees--White is the exception--yet the court has upheld decisions that permit affirmative action and abortion, as well as others that forbid prayer in public schools or public aid to parochial schools.

Now, conservatives are worried that the possible election of Democrat Bill Clinton might not only halt the move toward the right but lead to a new era of liberal activism.

“We could have a return of something like the (Earl) Warren court,” Willard said, if Clinton were to replace the three departing justices with powerful liberals such as New York Gov. Mario M. Cuomo.

A more liberal court could halt capital punishment and mandate increased government spending for prisons, schools and other public purposes, he said.

“My fear is that they (Democrats) will unleash the racial and gender extremists,” said University of Chicago law professor Michael McConnell, another veteran of the Reagan Administration.

On the other side, liberals and women’s rights advocates say that they worry about what might happen if George Bush is elected to a second term. With two or three appointments, Bush could clinch a conservative grip on the high court that would last well into the 21st Century.

By contrast, a more liberal court could be counted on to protect individual rights and cast a more skeptical eye toward government power, they say.

Many fear that Blackmun’s departure could have an immediate impact in the area of abortion.

“America remains one Supreme Court justice away from losing the fundamental freedom to choose,” said Kate Michelman, executive director of the National Abortion Rights Action League. “The next President will appoint the justice who will cast the deciding vote on state laws that ban abortion.”

Still, any predictions on how the election will affect the high court are bound to be speculative. No one knows how many seats will become vacant or how new justices--even those whose every written word has been thoroughly scrutinized--would decide the most controversial issues.

In 1976, Democratic activists cheered when Jimmy Carter won the White House. Yet he became the first President to serve a four-year term without an opportunity to fill a seat on the Supreme Court.

Reagan, an avowed opponent of abortion, added three justices to the court: Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy. But only Scalia ultimately voted to reject a woman’s right to choose abortion.

In recent years, Chief Justice William H. Rehnquist, 68, had talked fondly of retiring from the court to have time to travel and to write. This year marks his 20th year on the bench.

But last year his wife, Nan, died after a long struggle with cancer. More recently, the chief justice has acknowledged the prospect that the Democrats may soon regain the White House. Rehnquist now downplays any talk of retirement and tells friends that he feels an “obligation” to remain on the court.

As a result, the court nominees of a President Clinton could look forward to joining a Rehnquist Court still dominated by conservatives.

Over the summer, more than 1,500 appeals piled up at the court and the justices will act on most of them Monday. They likely will agree to hear several dozen cases that raise important legal issues and reject all the rest.

Lawyers for the territory of Guam are asking the justices to reinstate the island’s newly enacted criminal ban on abortion, a measure struck down by the U.S. appeals court in San Francisco. Since five justices in June reaffirmed the right to abortion in the Pennsylvania case, they probably will reject the Guam appeal.

The court is likely to take up the question of whether U.S. officials can turn back Haitian refugees on the high seas without considering their reasons for fleeing the troubled island. So far, the justices have refused to halt the mass repatriations but a U.S. appeals court in New York ruled in August that the Bush Administration is violating the Refugee Act of 1980. Administration lawyers have asked the court to hear an appeal and reverse that ruling.

Meanwhile, the court already has agreed to hear arguments in 65 pending cases.

The court is evidently split on whether federal judges have the authority to halt Operation Rescue’s efforts to blockade abortion clinics. Last fall, the justices heard arguments on that issue in a case called Bray vs. Alexandria Women’s Health Clinic, then unexpectedly announced that they were not ready to make a decision. A second, hourlong argument will be heard Tuesday.

In that dispute, women’s rights advocates rely on the old Ku Klux Klan Act of 1871, which gave federal judges the power to halt those who “conspire to prevent by force, intimidation or threat” any citizen who seeks to exercise a constitutional right. The Bush Administration says that this law protects blacks, but not women seeking abortions.

An unusual case from Florida involving animal sacrifices will test the limits of the First Amendment’s protection for the “free exercise of religion.” Adherents of Santeria, a West African religion, sacrifice pigeons, chickens and other small animals during ceremonies, a practice that was outlawed by the city of Hialeah, near Miami.

However, the city allows the killing of animals by hunters, fishermen and butchers. The American Civil Liberties Union, which is representing the Santeria sect, argues that the city’s law unconstitutionally discriminates against a religious practice.

A death penalty case from Texas tests whether the discovery of new facts suggesting that a convict is innocent is reason enough to stop his execution. A federal appeals court in Houston said that such eleventh-hour evidence is irrelevant and the Administration agrees.

In February, the justices appeared to be split, 5 to 4, on the question. While five justices refused to halt the execution of Leonel Herrera based on new evidence indicating that he did not commit murder, four justices said that his case should be heard. It took the last-minute intervention of two Texas state judges to stop the execution. Lawyers will argue his case before the high court on Wednesday.

Court’s High-Profile Cases

The Supreme Court’s 1992-93 agenda includes cases that address a number of controversial legal questions:

Abortion picketing: Do federal judges have the power to intervene when Operation Rescue activists try to blockade abortion clinics? Or, as the Bush Adminstration asserts, is this a matter better left to local officials? The case (Bray vs. Alexandria Women’s Health Clinic, 90-985) was heard last year but the justices ordered new arguments this week.

Religious freedom: Can a city make it a crime to sacrifice an animal as part of religious ceremony? The case (Church of Lukumi Babalu Aye vs. Hialeah, Fla., 91-948) tests the meaning of the First Amendment’s guarantee of the “free exercise of religion.”

Death penalty: Can a state ignore new evidence that a Death Row inmate may be innocent and proceed with his execution? Or does the Constitution require a judge to take another look at the facts? A Texas case (Herrera vs. Collins, 91-7328) could set new guidelines for 11th-hour appeals.

Obscenity: Can the government shut down a chain of 13 adult bookstores and burn more than 100,000 books, magazines and videotapes based on a jury’s conclusion that seven of those items are obscene? Yes, said a federal appeals court. The case (Alexander vs. U.S., 91-1526) will test the limits of the federal anti-racketeering law.

Advertising: Can a city ban news racks containing advertising supplements while permitting the sale of newspapers? The case (Cincinnati vs. Discovery Network, 91-1200) forces the court to clarify whether advertising is fully protected as free speech under the First Amendment.

Source: Times staff