Supreme Court Ends Term With Souter Leading Way : Judiciary: He helps steer a moderate-to-liberal course. Conservatives usually find themselves in dissent.

Supreme Court Justice David H. Souter, nearing the end of his court opinion that struck down a New York law carving out a separate school district for a Hasidic sect, paused to reply to a ferocious dissent filed by his more conservative colleague, Antonin Scalia.

“Justice (Benjamin N.) Cardozo once cast the dissenter as ‘the gladiator making a last stand against the lions.’ Justice Scalia’s dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining,” Souter said dryly.

It may be hard to imagine the soft-spoken New Hampshire jurist as a lion-tamer, but perhaps the most significant trend in the court term that ended last week was Souter’s rise to challenge the hard-charging conservatives on his right and his success in pushing them aside in most of the key cases.

The result was a court increasingly likely to fashion moderate-to-liberal rulings, with Souter quietly emerging as its new leader.

Lawyers on both sides of the ideological spectrum point to Souter as a growing force, a surprise for a little-known judge who was derided as the “stealth candidate” when then-President George Bush nominated him in 1990.

“Souter is emerging as the liberal leader in the post-Blackmun era,” said Clint Bolick, counsel to the conservative Institute of Justice, referring to Justice Harry A. Blackmun, who retired after 24 years on the high court.

“His stature, competence and confidence seems to grow from term to term. He is becoming a real leader,” said Steven R. Shapiro, national legal director for the American Civil Liberties Union. Thanks in large part to Souter, the just-completed term was a “surprisingly successful” one for civil liberties, he added.

In the term that ended last Thursday, the justices interpreted the Constitution to say that religious groups may not be given political power, that potential jurors may not be excluded because of their gender, that the government cannot seize a home in a drug case without a hearing, that cities cannot bar a homeowner’s display of a protest sign and that prison officials can be forced to pay damages if they deliberately ignore a clear risk to the health of their inmates.

In cases involving federal laws, the justices made it easier for victims of sexual harassment to win damages from their employers, said abortion protesters who use violence can be sued under an anti-racketeering law and ruled that the Civil Rights Act of 1991 does not apply to cases that were pending before it was enacted.

For conservatives, the biggest victories came in the area of property rights. The Constitution does not allow officials to demand a piece of property in exchange for a building permit, the court said on a 5-4 vote, unless they can prove this exaction is closely linked to the burden imposed by the expanded development. In addition, the court insisted that state judges examine a jury’s punitive-damage award to make sure the amount is not excessive.

Souter’s growing strength may be especially important as the court undergoes transition. Thursday marked the last day for the 85-year-old Blackmun. If all goes as expected, he will be replaced in October by President Clinton’s second nominee, Judge Stephen G. Breyer of Boston.

In May, White House Counsel Lloyd N. Cutler boasted that Breyer had the experience and skill to be a coalition builder on the high court. But privately, some Administration attorneys admit that Souter is likely to be a stronger, more effective voice in behalf of civil rights and individual liberties.

In her first term, Justice Ruth Bader Ginsburg followed a moderate-to-liberal approach similar to Souter’s. Along with Breyer and veteran John Paul Stevens, the four could form a solid coalition.

Just a few years ago, it looked as though the rapid succession of new conservative appointees could push the high court sharply to the right. Presidents Ronald Reagan and Bush said they wanted to see the court reject the right to abortion, permit prayer in schools and cut back on the rights of criminal defendants. In William H. Rehnquist, they had a chief justice committed to those goals.

But several Reagan-Bush appointees have disappointed conservatives: Souter in particular and Anthony M. Kennedy to some degree. In June, 1992, they stunned their conservative colleagues by joining with Justice Sandra Day O’Connor to strongly reaffirm the Roe vs. Wade ruling on abortion rights and to strike down a public school graduation prayer that was led by a cleric.

Since then, the court has steered a mostly center course, if anything moving slightly left. More often than not, the strict conservatives--Scalia, Rehnquist and Clarence Thomas--find themselves in dissent.

Scalia, 58, has only one real follower: Thomas, who turned 46 last week. They vote together in nearly every significant case. Lacking a following, Scalia revels in firing off vitriolic dissents that deride the majority opinion as being illogical and unfaithful to the Constitution.

Where Scalia is fond of writing long, historical opinions that bolster his conservative stands, Souter counters with equally detailed historical examinations, but with a different conclusion. In the past two years, for example, he has authored opinions citing 18th-Century history to show that the framers of the Constitution did indeed seek a separation of church and state, not just a ban on official state churches, as Scalia and Rehnquist maintain.

Last week’s ruling in the Hasidic case renewed the fight. In dissent, Scalia devoted 23 pages to slamming Souter’s majority opinion: his “manipulation” of the facts, his “steamrolling” of key distinctions, his “facile conclusions” and his ultimate judgment “disfavoring religion.”

In two pages, Souter rebutted him with a deft touch. Scalia’s stand would be easier to accept, he said, if his “position had prevailed with the framers and with this court over the years.” Calling Scalia “blind to history as well to precedent,” Souter said the court will continue to insist that “singling out a particular sect for special treatment” violates the Constitution. Scalia had the votes of Thomas and Rehnquist, while Souter spoke for the six-member majority.

Four years ago, most predicted Souter would join the conservatives. Not only was he a Bush appointee, but he had been recommended highly by Bush’s conservative Chief of Staff John H. Sununu, a former New Hampshire governor.

But ex-clerks and friends note that Souter takes seriously his role as replacing Justice William J. Brennan, the longtime champion of the Bill of Rights who retired in 1990. The two lunch together often, friends say.

To be sure, Souter is no Brennan-style liberal. Where Brennan opposed capital punishment as flatly unconstitutional, Souter usually votes to uphold death sentences so long as the rules were followed.

Souter, unlike Brennan, also favors carefully nuanced decisions.

For example, faced with a lawsuit filed by a transsexual prisoner who had been sexually assaulted behind bars, Souter rejected both the liberal and conservative approaches and then set forth a middle-ground standard. Wardens cannot be responsible every time an inmate gets hurt, he said, but neither can they be absolutely immune from liability when they knowingly and deliberately place an inmate in grave danger.

In March, he authored an opinion for the court that balanced the rights of a copyright holder against those of an artist who wrote a parody of a popular song. Adopting a step-by-step approach, Souter explained the four factors that determine when a work is a “fair use” and when it goes too far and violates a copyright.

There are no sounds bites in a typical Souter opinion. He can be turgid writer, and sometimes both sides claim victory after reading his decision.

But his careful approach also draws the support and respect of his fellow justices. Only Thomas dissented in the prisoner’s case, and the opinion in the copyright case was signed by all nine members.

Soon after he arrived in the fall of 1990, Souter seemed overwhelmed by the job. But as a bachelor with few social friends in Washington, he was able to plunge wholeheartedly into the work of the court.

While not exactly a young bachelor at 55, Souter is just coming into his prime years on the court. But already, he has proven to be far more than first advertised. Says Carter Phillips, a Washington attorney who practices before the court: “This was a guy who came in as an unknown from nowhere. But ultimately, I think he will prove to the most important one up there.”

Key Supreme Court Rulings

Here are some of the key rulings during the 1993-94 term. (The author of the main dissent is listed first):

CIVIL RIGHTS

* A worker need not suffer psychological or emotional harm to win a sexual harassment lawsuit. Harris vs. Forklift Systems, 9-0.

* Gender discrimination in the selection of jurors is unconstitutional. JEB vs. Alabama, 6-3. Dissent by Scalia, Rehnquist and Thomas.

* The Civil Rights Act of 1991 does not apply retroactively to cases in the judicial pipeline. Landgraf vs. USI Film, 8-1. Dissent by Blackmun.

* A school district must reimburse parents for the cost of private schooling because they were forced to take their disabled child out of a public program. Florence County vs. Carter, 9-0.

* The Voting Rights Act does not require states to create the maximum possible number of legislative seats for blacks and Latinos. Johnson vs. DeGrandy, 9-0.

CRIME AND PUNISHMENT

* California death penalty law gives sentencing jurors “common-sense” guidance and is therefore constitutional. Tuilaepa vs. California, 8-1. Dissent by Blackmun.

* A homeowner is entitled to a hearing before the government can seize his property because of an earlier drug conviction. U.S. vs. Good Real Property; 5-4. Dissent by Rehnquist, O’Connor, Scalia and Thomas.

* Prison officials can be sued if they ignore an “obvious risk” to an inmate’s health, including the possibility that he will be sexually assaulted. Dee Farmer vs. Warden, 8-1. Partial dissent by Thomas.

* States cannot fool jurors determining a sentence in death penalty cases by not telling them that a convicted killer will be kept in prison for life, regardless of the outcome. Simmons vs. South Carolina, 7-2. Dissents by Scalia and Thomas.

FREEDOM OF SPEECH

* Cities may not impose a ban on signs and billboards that prevents a homeowner from putting up a protest sign in her front yard. Ladue vs. Gilleo, 9-0.

* Government can regulate cable television so long as regulators do not seek to dictate content of its programs. Turner Broadcasting vs. FCC, 5-4. Dissent by O’Connor, Scalia, Thomas and Ginsburg.

* Abortion protesters who conspire to shut down clinics through violence can be forced to pay damages under the federal anti-racketeering law. NOW vs. Scheidler, 9-0.

* Judges may bar abortion protesters from picketing on the sidewalk in front of a clinic if the ban is deemed necessary to maintain access to the facility. Madsen vs. Women’s Health Center, 6-3. Dissents by Scalia, Kennedy and Thomas.

BUSINESS

* A victim of stock fraud cannot sue advisers who aided and abetted the scheme. Central Bank of Denver vs. First Interstate Bank of Denver, 5-4. Dissents by Stevens, Blackmun, Souter and Ginsburg.

* A commercial parody of a song may not violate copyright if it transforms the original work. Luther Campbell vs. Acuff-Rose, 9-0.

* California’s unitary tax on multinational corporations is constitutional because Congress has not required states to follow uniform taxing policies. Barclays vs. Franchise Tax Board, 7-2. Dissents by O’Connor and Thomas.

* Public officials cannot demand a piece of land in exchange for a building permit unless they can show that their purpose in taking the land is closely related to the burden imposed by new development. Dolan vs. Tigard, 5-4. Dissents by Stevens, Blackmun, Souter and Ginsburg.

* The government can impose taxes retroactively, even when taxpayers lose money because they followed the law as it was when they filed their returns. U.S. vs. Carlton, 9-0.

RELIGION

* A state may not carve out a separate school district for a religious sect. Kiryas Joel Village School District vs. Grumet, 6-3. Dissents by Scalia, Rehnquist and Thomas.