NEWS ANALYSIS : Clinton Picks May Not Pull Supreme Court From Right

The final weeks of this year’s Supreme Court term showed that conservatives may be able to control many decisions, even if President Clinton replaces three aging justices.

In a year when moderate conservatives, who appeared to be shifting to the center during the court’s previous term, largely re-established themselves as part of a conservative majority, the dissent often came from those justices most likely to leave the court during Clinton’s term.

Witness votes on two key rulings that revised laws on job discrimination and voting rights.

In the first, the court made it far harder for a black worker to prove that he or she was fired because of racial discrimination, a new standard that will affect thousands of cases of alleged bias.

In the second, the court gave disgruntled white voters the power to challenge electoral boundary lines that were drawn to benefit minority candidates.

Both rulings came on 5-4 votes, but the dissenters included the members most likely to be replaced by Clinton. Justice Byron R. White, who officially retired when the court recessed, dissented in both cases, as did Justices Harry A. Blackmun, 84, and John Paul Stevens, 73.

Earlier this year, the court also stripped federal judges of their power to break up human blockades of abortion clinics.

That 6-3 decision narrowed the interpretation of an old civil rights law designed to protect blacks from Ku Klux Klan mobs. Most judges had ruled that women seeking abortions could use the law to protect themselves from “mobs” of abortion protesters.

But the high court ruled that the law did not apply in abortion disputes, with Blackmun and Stevens joining Sandra Day O’Connor, 63, in the dissent.

Once again this year, the court rejected nearly every claim by Death Row inmates, including one from a Texas man who sought a last-minute hearing to present new evidence that could prove his innocence.

On a 6-3 vote, however, the high court said that such new evidence, even if it were credible, did not empower federal judges to block a state execution. Blackmun and Stevens joined Justice David H. Souter, 53, in dissent.

Those decisions, probably the most significant rulings of the 1992-93 term, show that Presidents Ronald Reagan and George Bush succeeded in giving the high court a conservative cast that could easily last through a four-year Clinton presidency.

“The power may reside in the center, but the center of this court remains essentially conservative,” said Steven Shapiro, litigation director for the American Civil Liberties Union in New York. “This court tends to focus on the facts, to shy away from broad statements, but they still come out on the conservative side.”

Former Reagan Administration attorney Clint Bolick agrees.

“The conservative majority seemed to solidify this year. It suggests that Ruth Bader Ginsburg may not make much difference,” said Bolick, now counsel for the pro-property rights Institute for Justice in Washington.

On July 20, the Senate Judiciary Committee will begin hearings on Ginsburg, Clinton’s nominee to replace White. Unless she runs into unforeseen trouble, she will take her seat when the court returns to the bench on the first Monday in October for a term that will include several highly charged cases.

In the fall, the court will consider whether the Civil Rights Act of 1991 should be applied retroactively to thousands of pending cases, whether women who say they were sexually harassed at work must show that they suffered a severe psychological injury and whether abortion protesters can be sued under anti-racketeering laws if they seek to shut down abortion clinics.

But Ginsburg, who compiled a centrist record as an appeals court judge, is not expected to significantly shift the balance on the high court. Indeed, even had she joined the more liberal faction in this year’s key cases on civil rights, abortion and the death penalty, her vote would not have changed the outcome.

Last year, the court term ended on a disappointing note for many conservative activists. To their dismay, the moderate-conservative justices, including O’Connor and Anthony M. Kennedy, 56, split from Chief Justice William H. Rehnquist, 68, and refused to overturn the Roe vs. Wade ruling, which gives women the right to seek abortions, and the 1960s rulings outlawing official prayers in school.

Those defections suggest that the court would follow a path of cautious conservatism, avoiding dramatic departures from legal precedents.

Nothing happened this term to change that view. The justices refused to even consider further challenges to the right to abortion, and, while they gave religious-rights advocates victories in two school cases, they did so without greatly changing the law governing church-state conflicts.

They also sidestepped a direct ruling on whether public schools can offer student-led prayers, an issue almost certain to come back again.

But on matters of civil rights and criminal law, this term’s rulings demonstrated that the majority will usually take a conservative stance.

If there was a mild surprise this year, it was the emergence of Souter as something of a moderate. The soft-spoken New Hampshire jurist, who was nominated by Bush, not only disagreed with the conservatives this year in nearly all important cases where the justices were divided, but he did so in a more assertive manner.

In the job discrimination case, Souter sounded like William J. Brennan, the liberal justice he replaced.

Justice Antonin Scalia’s majority opinion revised the rules for trying job discrimination disputes, saying that alleged victims of bias cannot necessarily win their cases even if their employer has not provided a convincing alternative explanation for their dismissal.

Souter wrote that the opinion “destroys a framework carefully crafted in precedents as old as 20 years” and substitutes in its place “a misleading and potentially useless ritual” that will protect employers who fail to disclose their true reasons for firing a worker.

In the voting rights case, Souter faulted the conservatives for leaping to the conclusion that whites were being denied “the equal protection of the laws” by “racial gerrymandering,” even though the 78% white population in North Carolina retained 83% of the congressional seats.

Unless white voters can show that there has been a “dilution of their voting strength,” their rights have not been violated, Souter said in dissent.

Frequently, Souter offered a scholarly counterweight to Scalia, 57, the conservative theoretician.

Last year, O’Connor, Souter and Kennedy combined to write an opinion upholding the Roe vs. Wade ruling, and they were then seen as forming a new moderate-conservative coalition that controlled the court.

But this year, Kennedy and O’Connor returned to the conservative side in most instances, while Souter parted company and joined most often with Blackmun and Stevens.

By contrast, Bush’s second appointee, Justice Clarence Thomas, 45, voted strictly with the conservatives.

Indeed, Thomas, the youngest justice, may stand as the court’s most conservative member. In two criminal cases, he took stands to the right of Rehnquist and Scalia.

In a case involving whether police can search the pockets of a person stopped on the street, Thomas disagreed with Scalia and the majority opinion and said he would not restrict the police from engaging in such searches.

In a prison rights case, the court, including Rehnquist, ruled that wardens violate the 8th Amendment ban on “cruel and unusual punishment” if they confine an inmate against his will with a cellmate who smokes five packs of cigarettes a day.

In a dissent, Thomas said that he not only disagreed with this conclusion but argued that the 8th Amendment does not even apply to wardens or prison conditions. In his view, the amendment put limits on punishments such as prison sentences, but not on how sentences are carried out.

“I believe that the text and history of the 8th Amendment . . . support the view that judges or juries--but not jailers--impose ‘punishment,’ ” he wrote.

The Big Decisions

Here are the key rulings from the Supreme Court’s 1992-93 term

CIVIL RIGHTS

* A worker who says he was fired because of racial discrimination does not win his claim simply by proving that his employer’s asserted reasons for firing him are phony.

* State officials violate the rights of white voters when they engage in extreme “racial gerrymandering” to create safe seats for minorities.

* The laws on refugees do not govern the Coast Guard on the high seas and do not give fleeing Haitians a right to an asylum hearing in the United States.

RELIGION

* Public schools may pay for a deaf child’s interpreter in a Roman Catholic school.

* Church-related groups may not be excluded from using school facilities if other social and civic groups are included.

* A city law banning “ritual animal sacrifice” unconstitutionally limits the free exercise of religion.

GOVERNMENT SEIZURES

* Government cannot seize drug-tainted property from an “innocent owner” who had no knowledge of the drug connection.

* Government cannot seize property that is “excessive” compared to the crime committed.

* The First Amendment’s protection for free speech does not block the government from seizing an entire chain of bookstores because the owner sold several obscene books.

ABORTION

* Federal civil rights laws do not empower judges to break up blockades of abortion clinics.

CRIMINAL LAW

* A Death Row inmate’s claim of new evidence showing his innocence is not enough to empower a federal judge to halt his execution.

* Police may not search the pockets or clothing of a suspect stopped on the street unless they have probable cause to make an arrest.

* States may enact “hate crime” laws that impose a harsher sentence on criminals who attack their victims because of their race, religion, gender or sexual orientation.

BUSINESS

* An award of punitive damages that is 526 times greater than the actual damage is reasonable because it will deter the company from committing the same wrongful conduct in the future.

* Only the managers of an enterprise, not outside advisers such as lawyers and accountants, can be sued for damages under the federal anti-racketeering law.

* Juries should be permitted to hear competing experts in cases involving highly technical disputes, so long as the experts are qualified to offer scientific testimony.

Source: Times Washington Bureau