Supreme Court Can No Longer Duck the Big Issues

On Monday, the U.S. Supreme Court begins its annual term, one that could keep the justices in the headlines all year. What sets this term apart is both the controversies the court has already agreed to decide on and the growing speculation about which justices will retire and how the next presidential election could alter the court’s direction.

Last year’s term was low-profile. The court virtually disappeared from the political landscape. Few cases were granted, and they were largely routine taxation, jurisdiction and statutory construction cases. Oral arguments were heard in just 90 cases out of the more than 8,000 on the docket. That continued a trend toward “minimalism,” in both the number and kinds of rulings handed down, which began with the elevation of William H. Rehnquist from associate to chief justice in 1986.

In the early 1980s, about 180 cases were decided each term, but during the last decade, the number has declined by half. The court has avoided cases dealing with red-hot controversies over abortion, affirmative action and government support for religion. In short, what the court has not been doing was about all that was newsworthy.

But already this term, the court has granted oral arguments in 44 cases that raise wide-ranging issues with major consequences for the country. Among them is how far states may go in limiting campaign contributions by political-action committees. The court will also decide whether the Food and Drug Administration may regulate tobacco. There are important cases involving age discrimination, patients’ health-care rights, rape victims’ rights and minority voting rights. The justices will take up 1st Amendment challenges to regulations banning nude dancing in adult theaters and governing “sexually explicit” material on cable television. Once again, too, the justices will reexamine the vexing matter of the 1st Amendment’s separation of government from religion, in a case challenging a government program for giving nonreligious materials, such as computers, to religious schools.

These are only among the cases already granted. In addition, before the end of the term, the court will have to decide whether to grant other appeals involving controversies over “partial-birth abortion,” affirmative action and school prayer. In short, even the “minimalist” Rehnquist court cannot completely evade major political controversies or escape the spotlight of public scrutiny.

Notably, the term will open without Justice Ruth Bader Ginsburg, who is recovering from surgery for colon cancer. Inexorably, the illness of the 66-year-old justice, appointed in 1993 by President Bill Clinton, immediately invited speculation about whether and when she might retire. There is no doubt that if Ginsburg leaves, a powerful voice for women’s rights will be lost from the court. No less certainly, it will fall to Clinton’s successor to name her replacement. The GOP-controlled Senate, as in previous presidential-election cycles, is in no mood to confirm any nominee put up by a lame-duck president.

Even before news of Ginsburg’s illness, candidates for the Republican Party’s presidential nomination were declaiming how the next president could appoint two, three or more justices. They will undoubtedly turn up the heat during the 2000 presidential campaign. Hence, the court will stay in the spotlight not only because of what it decides, but also because of outside forces dragging it ever deeper into election-year politics.

The stakes are high and will grow because of the advancing age of the justices. Last Friday, for example, Rehnquist turned 75. Next March, Justice Sandra Day O’Connor, who was appointed by President Ronald Reagan in 1981, turns 70. The following month, Justice John Paul Stevens, whom GOP President Gerald R. Ford appointed in 1975, will celebrate his 80th birthday.

Compounding the forces propelling the court into the limelight is that the Rehnquist court remains sharply divided on the most highly contested issues. On abortion, affirmative action, federalism and religion in public schools, the justices split 5-4. Though commanding only a bare majority, Rehnquist has steered the court in decidedly conservative directions, especially when it comes to curbing Congress in defense of states’ rights.

Rehnquist virtually always has the votes of fellow Reagan appointee Justice Antonin Scalia and Justice Clarence Thomas, the choice of Republican President George Bush to replace the last truly liberal justice, Thurgood Marshall. Those three staunchly conservative justices can generally count on the votes of O’Connor and Reagan’s last pick, Justice Anthony M. Kennedy. These two more moderate conservatives cast the pivotal votes. For example, they voted not to expressly overrule the landmark ruling on abortion, Roe vs. Wade, though they jettisoned much of its analysis and upheld antiabortion restrictions they deemed not to “unduly burden” women.

Voting against that conservative bloc are the four left-of-center justices: Clinton’s two appointees, Ginsburg and Justice Stephen G. Breyer; Stevens, a maverick; and Bush’s first appointee, Justice David H. Souter, who has emerged as a leading and articulate critic of the court’s conservative majority.

Within these battle lines, a bare majority has steadfastly pressed ahead, thwarting the democratic process by striking down laws enacted by Congress and state legislatures. In particular, with a series of 5-4 rulings on federalism, the court has sharply limited congressional power. It invalidated congressional legislation banning the possession of firearms within 1,000 feet of schools, regulating the disposal of radioactive waste and expanding protection for religious minorities. Just last term, three other acts were shot down for exceeding congressional power at the expense of the “structure and history” of federalism. Not since before the 1937 constitutional crisis over the court’s invalidation of progressive New Deal legislation has a bare majority been so bent on reigning in Congress.

This coming term presents more federalism cases in challenges to the constitutionality of Congress’ enactment of the Drivers’ Privacy Protection Act and the Violence Against Women Act of 1994. The latter will push O’Connor center stage and force her to choose between her positions on federalism and women’s rights. Make no mistake, O’Connor is no Ginsburg, though it is hard for her to completely turn her back on women.

At issue in Brzonkala vs. Morrison is whether Congress exceeded its power in giving women who are raped a basis for suing for civil damages. Christy Brzonkala, a college student, was raped by two football payers and sued them for damages under the law. But an appellate court held, in light of the high court’s recent rulings, that the law unconstitutionally intruded on traditional state concerns. Now O’Connor will have to decide and, if possible, reconcile her defense of states’ rights with her concern for women.

Whatever the outcome, it is clear that the court has not been as bitterly divided on so many hot-button issues since 1987, when Justice Lewis F. Powell Jr. stepped down. Powell regularly cast the crucial fifth vote and when he retired, a nasty nationally televised battle broke out over Reagan’s unsuccessful nominations of Robert H. Bork and Douglas H. Ginsburg to fill his seat.

Consequently, future retirements from the high bench and their replacements, after the presidential election, are likely to fundamentally alter the court’s direction. If Rehnquist or O’Connor steps down after the election, for example, a Democratic president could dramatically shift the court’s balance and move it in more liberal directions. If those conservative justices or liberals like Ginsburg and Stevens retire, a GOP president will have the opportunity to lock in a staunchly conservative court for years to come.

Be forewarned: Expect in this coming year a high-profile court handing down controversial decisions on contentious social issues. Increasingly intense presidential campaign rhetoric will be aimed at the court and voters during the race. All this, along with the mounting speculation about justices’ possible retirements, their replacements and the mobilization of forces for and against potential nominees. The court is definitely headed for newsy bold relief again. *