June 28, 1997 in Nation/World

Scales Tip To Right Supreme Court’s Conservative Faction Ruled Roost This Past Session, A Lasting Mark Of The Reagan-Bush Era.

Aaron Epstein Knight-Ridder
 

With a whirlwind finish, the Supreme Court justices ended a 1996-97 term that, more than any in recent years, bolstered the states, curbed federal power and altered the delicate relationship of government and religion.

In the last week alone, the court tore up recently enacted laws on gun control, religious rights and smut in cyberspace and, for the first time, permitted public school teachers to instruct children in parochial classrooms. Then, on Friday, the justices quietly slipped away for a long summer rest.

“The pattern is clear,” remarked A.E. Dick Howard, a University of Virginia law professor who has tracked Supreme Court developments for many years. “They care about the states and about protecting them from Congress.

“They want to trim the powers of the federal government and give local communities control over local problems. It parallels the country’s mood,” Howard said.

To many observers, it was no surprise the justices found no right to an assisted death and upheld state laws barring doctors from helping terminally ill patients to die. These justices are reluctant to create new personal rights.

In several of their decisions, the justices made it abundantly clear that, despite the high visibility and enormous powers of the president and the Congress, there is another branch of government in town.

And in matters of constitutional dimension, it is the Supreme Court’s duty “to say what the law is,” declared Justice Anthony Kennedy, whose vote continued to be pivotal in the nearly all close cases.

In one case, Kennedy, a former law school teacher, delivered a stinging civics lesson to the Congress and the White House.

When “the political branches of the government” try to undo the Supreme Court’s reading of the Constitution, he wrote for the court’s conservative majority, “it must be understood that … the court will treat its precedents with the respect due them … and contrary expectations must be disappointed.”

What the message meant, Howard said, was that “conservative doesn’t mean being weak-kneed about your own turf. This court will defend its turf. To call it a court of judicial restraint would be a misnomer. That’s not what this court is about.”

Looking to the future, Ronald Rotunda, a law professor at the University of Illinois, said two rulings in particular changed the law and may carry the seeds of future change.

First, he said, the decision overturning the Religious Freedom Restoration Act “was very dramatic and very important. It raises questions about a host of federal laws that create new rights against the states, such as the Americans With Disabilities Act.”

He attached special significance, too, to a decision that allows public schools to finance and conduct remedial and enrichment courses in religious schools.

“It sets the stage for the constitutionality of private vouchers, kindergarten through 12th grade,” he said. “The government would give money to parents, and they pick the schools they want, public or private.”

As in past years at the court, racial minorities, criminal defendants and prisoners fared badly.

The court decreed that one predominantly black congressional district in Georgia was enough, and it allowed states to lock up sexual offenders on civil commitments when their prison terms are over.

The Clinton administration didn’t have a particularly good year, either. Nor did the president himself. He failed to fend off Paula Jones’ sexual-harassment suit or keep lawyers’ notes of conversations with the first lady out of the hands of Whitewater prosecutor Kenneth Starr.

When it came to the deeply divisive issues that Americans care most about - race, religion, crime and punishment - the conservative majority wrote the law. On most ideologically divided questions, this is a Reagan-Bush court, not a Clinton court.

In half of the 18 cases decided by 5-4 votes this term, the court’s five most conservative members - Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas, Sandra Day O’Connor and Anthony Kennedy - held together to eke out significant victories.

All five owe their current seats to Republican Presidents Ronald Reagan and George Bush.

The two Clinton appointees, Ruth Bader Ginsburg and Stephen Breyer, joined the majority in only a handful of the 5-4 cases, and they were generally of lesser interest.

A final footnote: If you live in any of nine Western states (Washington, Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada and Oregon), don’t bet on the durability of any important ruling of the regional circuit court.

In the term ended Friday, the Supreme Court reviewed an extraordinarily high number of cases - 29 - from the San Francisco-based U.S. Court of Appeals for the 9th Circuit and reversed 27 of them, according to statistics compiled by Tom Goldstein, a Washington lawyer.

For the circuit judges, many of whom are liberals, that’s a batting average of .069 at the major-league judicial level, which could be something of a record. “If they were baseball players,” Goldstein said, “they’d have to take up a new sport.”


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