High Court Scales Tilt on Weight of 2

This week, Supreme Court Justices Sandra Day O’Connor and Anthony M. Kennedy, the moderate conservatives appointed by President Reagan, will say what they think about Miranda warnings, “partial-birth” abortions and public aid to parochial schools.

Their opinions almost surely will determine how the Supreme Court rules on these issues. The justices are expected to wrap up their term next week by handing down rulings in eight remaining cases.

If there has been one unchanging trend for the last decade, it is this: O’Connor and Kennedy will cast the deciding votes in major cases.

Their colleagues’ leanings are more predictable. On the right, Chief Justice William H. Rehnquist can count reliably on fellow conservative Justices Antonin Scalia and Clarence Thomas.

Lining up on the left, usually in unison, are Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

If O’Connor and Kennedy tilt right, as they do much of the time, Rehnquist can muster a conservative majority on issues ranging from the death penalty to affirmative action. They have also joined a series of rulings in favor of “states’ rights” and limiting federal power. In May, for example, the court struck down the federal Violence Against Women Act on a 5-to-4 vote. The chief justice said that Congress had exceeded its power by giving victims of sexual assaults a right to sue their attackers.

Similarly, in January, the same 5-4 majority ruled that the nation’s 5 million state employees cannot sue their employers for age bias. The states have a “sovereign immunity” from such claims, O’Connor said.

But when the O’Connor-Kennedy pair tilts left, the court sounds strikingly liberal. Last week, the two justices agreed that public schools cannot encourage group prayers, joining a 6-to-3 ruling rejecting student-led prayers at football games and other school-sponsored events.

On the issue of “Miranda warnings,” the chief justice would like to scrap the rule that police must warn criminal suspects of their “right to remain silent” and instead, return to the old rule that confessions are legal if they are made voluntarily. O’Connor has criticized the Miranda decision in the past, but she and Kennedy have been reluctant to overturn well-established precedents.

On abortion, Kennedy and O’Connor surprised many Reagan administration veterans in 1992 by voting to uphold the Roe vs. Wade ruling. The latest test involves state laws that make it illegal for doctors to perform mid-term abortions by removing the fetus intact. During the April argument on the case, however, O’Connor sounded skeptical. She questioned whether the Nebraska law at issue gave doctors clear guidance on which procedures were legal and which were illegal.

On aid to parochial schools, both O’Connor and Kennedy have usually sided with the conservative trio in allowing some public money to flow to religious schools.

Beyond Kennedy and O’Connor, the last week of the Supreme Court’s term will also test whether conservative advocates can win on a free-speech claim.

Usually, free-speech claims are winners in the Supreme Court, and so are conservative lawyers. But not so this term, when conservatives brought forth free-speech claims.

In the fall, a Republican lawyer from St. Louis, with the backing of the Republican National Committee, challenged on free-speech grounds a $1,000 limit on campaign contributions from individuals. He won in the lower courts but lost, 6 to 3, in the Supreme Court. O’Connor and Rehnquist joined the four liberals to preserve campaign funding limits.

In another free-speech case that came before the high court this term, conservative students at the University of Wisconsin challenged the mandatory student fees that subsidize left-leaning campus groups. They too won in the lower court but lost, 9 to 0, in the Supreme Court.

Two more free-speech cases remain. Anti-abortion activists are challenging a Colorado law that bars protesters from confronting women on the sidewalks outside abortion clinics. The activists say that the law violates their 1st Amendment rights.

And the Boy Scouts of America are relying on the 1st Amendment to shield them from having to accept openly gay men as Scoutmasters. The New Jersey courts said that the state’s anti-discrimination law bars the Scouts from excluding gays.

The Scouts are asking the high court to say that the 1st Amendment gives them the right to set their own message of “morally straight” conduct, one that they say would be compromised if they were forced to accept gay leaders.