A ‘Conservative’ High Court That Treads Activist Ground : Justices prepare to hear cases with blockbuster potential

Many politicians have grown fond of categorizing sitting judges and those they would appoint to the bench as being either “activist,” generally meaning liberal, or “strict constructionists,” meaning conservative. Yet the current Supreme Court, which convenes its new term today, may continue to defy that distinction.

The present court, a majority of whose members are considered to hold either centrist or conservative political views, has nonetheless rendered decisions that would certainly be considered activist in the broader sense of the word. Recent rulings potentially redefining the state-federal relationship are cases in point. Two terms ago, the high court, for the first time in 60 years, struck down a federal law (one that barred guns near schools), saying that Congress had exceeded its power to legislate under the commerce clause of the Constitution. Last term, the same 5-4 majority held, in a case involving Indian gambling casinos, that the 11th Amendment barred Congress from permitting tribes to sue the states. Hardly a passive Supreme Court.

This term, the court has agreed to hear cases that many scholars predict will result in “blockbuster” decisions. On the docket are challenges to an Arizona law requiring government employees to use only English in performing their duties; to the federal government’s authority to require state officials to conduct background checks on prospective handgun buyers; to state bans on assisted suicide; and to restrictions imposed on protesters at abortion clinics. The court’s decision as to whether a sitting president can be sued for sexual harassment, arising from accusations against President Clinton by Paula Jones, will be avidly watched, no matter who wins in November.

In some instances--assisted suicide, for example--the court is taking on issues that it could have easily deferred until there is a larger body of appellate decisions than the two major rulings last year upholding physician-assisted suicide. The justices could also wait for more clamor for the Supreme Court to provide direction. This eagerness contrasts sharply with the court’s reticence in other areas, such as mass tort litigation--the many thousands of similar personal injury claims often resulting from exposure to chemicals, drugs or environmental hazards. Circuit court decisions in this area of the law are conflicting, injuries to plaintiffs such as from exposure to asbestos or toxic waste are real and the costs to all parties are enormous. Congress has resisted appeals for a legislative solution to the many problems these cases pose to the civil justice system. The high court’s guidance could help resolve these cases more fairly and efficiently.

Regardless of the subject, many legal scholars predict that the personal dynamics of this court will produce more narrow, 5-4 majorities and tartly worded opinions reflecting deep doctrinal divides. Even when this court reaches a unanimous decision, the justices may produce several separate concurring opinions. As in recent terms, Justices Sandra Day O’Connor and Anthony M. Kennedy are likely to represent key swing votes.

As long as this republic has existed, judges and politicians have debated whether the Constitution grants Americans rights and powers beyond those expressly written into that document. But in recent decades, issues such as civil rights, abortion and school prayer have intensified pressure to pigeonhole judges into the activist or the traditionalist camp. The record of the current Supreme Court proves the difficulty and futility of that enterprise. Politicians vowing to appoint future judges on the basis of “litmus test” political ideology rather than intellect, experience and compassion threaten to do a disservice to the nation and the courts.