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Like the lion, the Supreme Court goes out with a roar

By MICHAEL KIRKLAND

WASHINGTON, June 30 -- The Supreme Court as usual went out this week with a bang instead of a whimper.

On Wednesday, the last day the court met on the bench before recessing for the summer, the justices told us we could use public money to loan computers to religious schools, we could keep abortion protesters about 8 feet away and we could keep gays out of our Boy Scout troops, but we couldn't ban "partial-birth" abortions unless we did so in a very specific way and made clear exceptions for the "health of the mother."

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Then they refused to intervene in the Elian Gonzalez case.

Two days earlier, on Monday, the justices told us that hate crimes have to be proven "beyond a reasonable doubt" by a jury, not a judge, when they are used to lengthen a prison sentence for another crime. They also told us that the 1966 Miranda decision was not overturned by an act of Congress in 1968, and U.S. suspects still had "the right to remain silent" and the right to a lawyer.

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On June 19, the justices told us that students couldn't lead prayer over the public address system at high school football games.

In the past, the very articulate and very conservative Justice Antonin Scalia has described a "kultur kampf," or culture war being fought out in the courts for the soul of the nation.

Depending on which side of the "kultur kampf" you find yourself, some Supreme Court decisions this term either made you feel all warm and fuzzy, or made you feel as if you'd taken a hard punch to the gut.

The dynamics of the court term, which begins on the first Monday in October and ends when the justices have finished their work in late June or early July, ensure that many of the most controversial cases will be decided in the final few weeks.

The justices stop hearing arguments in April, leaving time in May and June to form alliances and write decisions in high-profile cases. All the term's decisions must be handed down before the justices escape like schoolchildren for the summer recess.

Unlike Congress and the presidency -- those two institutions can circle each other for years, endlessly looking for a political deathgrip without really affecting the landmark political issues of the age -- the Supreme Court consistently has a direct effect on the daily life of the average American.

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A score of decisions this term were decided on 5-4 votes, mostly along the usual ideological fault line.

Besides Scalia, the court's true conservatives are Chief Justice William Rehnquist and Justice Clarence Thomas. Thomas almost always votes in lockstep with Scalia, though Rehnquist is less predictable.

The liberals are Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- only one vote short of a five-justice majority on the nine-member court.

In the middle are moderate conservative Justice Sandra Day O'Connor and moderate Justice Anthony Kennedy. Both are often key swing votes in controversial cases.

There were some non-traditional alliances this term.

Rehnquist, a long-time foe of Miranda, wrote the 6-3 majority opinion upholding the 1966 precedent. The chief justice pointedly did not endorse Miranda's tenets. He did, however, say that it was a constitutional ruling in 1966, and since the Supreme Court declined to overturn it, Congress could not.

The decision reflected Rehnquist's occasional independence from the conservative bloc.

Another high-profile issue concerns health maintenance organizations. The liberal Souter spoke for a unanimous court in ruling that doctors in HMOs could not be sued under federal law for making financial decisions that might harm a patient's health.

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The other shoe could drop next term.

The HMO decision interpreted the Employee Retirement Income Security Act. Since ERISA pre-empts state liability and common law, the justices could rule next term that HMO lawsuits in the state courts are outlawed as well.

Such a sequel would put tremendous pressure on Congress and the new president for an effective patients' bill of rights.

Another untraditional alliance -- though not a firm one -- emerged June 5 when the Supreme Court struck down Washington state's law giving grandparents the right to court-ordered visitation with their grandchildren. The decision affected laws in all the states.

The three dissenters agreed in their opposition to the majority ruling, but did so in separate ways. Liberal Stevens, conservative Scalia and moderate Kennedy each wrote a dissenting opinion.

The 5-4 decision last Monday raising the bar for hate crimes involved an even odder coalition. Which do you defend, the rights of suspects or the rights of minorities not to be singled out for violence?

Liberal Stevens wrote the majority opinion saying juries must find "beyond a reasonable doubt" that a hate crime was committed. In other words, if you want to lengthen someone's sentence for assault, then you have to prove separately that the assault was motivated by the victim's race or gender. A judge cannot just assume the motive when "enhancing" a prison sentence by several years.

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Stevens was joined in the majority by conservatives Scalia and Thomas, and liberals Souter and Ginsburg.

O'Connor dissented, joined by Rehnquist, Kennedy and the liberal Breyer.

I t was enough to confuse even the most dedicated of court-watchers.

Such shifting alliances aside, the usual liberal-conservative split prevailed in most cases where it applied.

Given that reality, with a little analysis it's easy to see that if the next president is given the opportunity to fill a Supreme Court seat, the appointment could spin the high court away from its current incrementalism and toward a more consistently liberal or conservative theme.

Two cases serve as examples.

On May 15, the Supreme Court continued its march toward federalism by striking down a key provision of the 1994 Violence Against Women Act, one that gave victims the right to sue their alleged attackers.

Writing for the five-vote majority, Rehnquist elaborated on a theme the narrow majority has sounded since 1995's U.S. vs. Lopez -- that Congress cannot use the Commerce Clause or the 14th Amendment to justify everything it does.

The Commerce Clause in the Constitution gives Congress the power to regulate interstate commerce. But for decades Congress has used it to underpin a variety of national laws that have very little to do with financial transactions.

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Section 5 of the 14th Amendment gives Congress the power to enact laws that guarantee due process and equal protection under the law.

The four court liberals, led by Souter, dissented as they did in U.S. vs. Lopez and a small string of other federalism cases. O'Connor and Kennedy were in the majority, but if either had defected, the vote would have gone the other way.

A more emotional issue caused the 5-4 split on "partial birth" abortions.

Liberal Breyer wrote the majority decision last Wednesday that struck down Nebraska's ban on such abortion procedures, evoking bitter dissent from Thomas. The decision will also affect similar bans in 29 other states.

However, Breyer could have found himself writing for the dissenters if not for O'Connor, who joined the liberals to save the court's major precedents on the right to an abortion, 1973's Roe vs. Wade and 1992's Planned Parenthood vs. Casey.

The court's support for abortion is hanging by a thread. O'Connor supplies the thread, and Kennedy occasionally joins her when the issue is Roe's central core. He didn't join her in the "partial birth" abortion case, however.

Will the fragile majority continue?

For years, court "experts" who should have known better have been predicting that certain justices were about to retire for health or personal reasons. That probably will not happen over the next year.

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But it's far more likely to occur during the first or possibly second administration of the next president. Eight years is a long time for the court's older members.

Rehnquist is 75 -- he'll be 76 in October -- O'Connor is 70 and Stevens is 80.

Those close to Stevens and Rehnquist aren't predicting that they will leave. Supreme Court justices sometimes serve well into their 80s, and there's not much wear and tear on the job. Supreme Court cases have shrunk from about 150 per term in the mid-1980s to about 80 per term in the late 1990s.

The same cannot be said for O'Connor, who has been known to muse that there is life after the Supreme Court and whose husband has frequently longed to return to Arizona.

An O'Connor replacement would either continue the narrow majority supporting a woman's right to an abortion or join the conservatives in striking most of that right from American life.

President Bush or President Gore -- OK, let's be fair and add President Bauer, President Buchanan or President Nader -- will have to exercise the utmost care in making that choice.

When the Republican candidate's father was in the White House and selected Souter for the court in 1990, he thought he was picking a conservative champion, instead of the liberal stalwart he actually turned out to be.

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