The Supreme Question: Abortion, Gays, Prayer, Parochial Schools, Criminal Rights-In One Close Call after Another, the High Court's Dramatic Rulings Altered the Landscape. Inside a Divided Court, and How the Next President Will Shape It

Newsweek, July 10, 2000 | Go to article overview

The Supreme Question: Abortion, Gays, Prayer, Parochial Schools, Criminal Rights-In One Close Call after Another, the High Court's Dramatic Rulings Altered the Landscape. Inside a Divided Court, and How the Next President Will Shape It


Al Gore saw his opening, and he took it. Campaigning last Wednesday in Backlick, Ohio, the vice president unexpectedly tossed aside the top of a scheduled speech about energy and the environment and instead launched into a passionate lecture about the importance of the Supreme Court. All morning, Gore had been asking aides to inform him as soon as the court handed down its expected final opinions of the year. At about 11 a.m., just as Air Force Two was touching down in Ohio, he got the news he'd been waiting to hear: the justices had struck down laws in 31 states banning so-called partial-birth abortions, the controversial late-term procedure denounced by abortion opponents. But the vote was close--5-4--and the vice president couldn't wait to seize the opportunity to raise doubts about George W. Bush. The vice president immediately reworked his speech. "The next president will nominate... perhaps four justices to the Supreme Court," Gore warned in the new, improved text. "One extra vote on the wrong side," he said, "would change the outcome, and a woman's right to choose would be taken away."

Gore's warning was an exaggeration, to say the least. In fact, six of the nine current justices have supported fairly broad abortion rights. Still, Bush chose to downplay the decision, wary of being dragged into an abortion brawl that could put him on the wrong side of public opinion, sending moderate voters--especially women--fleeing. But he couldn't avoid the matter entirely: Bush issued a terse statement saying he would "fight for a ban on partial-birth abortion." Later in the week he cut a deal to keep the GOP's hard-line anti-abortion plank in the party's platform.

All week, the slew of decisions and emotional dissents handed down from the red-draped chamber of the Supreme Court reverberated across the country. The justices curbed the rights of anti-abortion protesters, allowed the Boy Scouts of America to bar gay men as Scoutmasters and reaffirmed that police must keep reading suspects the famous Miranda warnings. In some cases--including a decision allowing public money to be used to buy computers and books for parochial schools--the conservative justices won. Yet the court clearly demonstrated that it is hardly the cadre of rigid conservatives some in the press make it out to be. In several recent rulings, the justices seemed downright liberal, as in their unpopular decision barring student-led prayers at public-school football games.

The nine justices are often said to be split into two ideological camps: the five conservatives versus the four liberals, which helps explain why the court is so often divided 5-4. But, in fact, two of the so-called conservatives--Sandra Day O'Connor and Anthony Kennedy--are relatively centrist, usually taking positions remarkably in sync with (and sometimes to the left of) public opinion. Shifting alliances are common, with conservatives joining liberals in high-profile cases. In one, the court struck down an act of Congress curbing sexually explicit cable-television programming that might be seen by children. In another, it stressed that "grandparents' rights" laws can't interfere with a parent's rights to raise his or her children.

In the middle of an election year, last week's decisions were an abrupt reminder of just how quickly, and unpredictably, the Supreme Court can upend the social landscape--and how big an impact the next president could have in influencing the court's direction. The most controversial of the opinions, partial-birth abortion and Boy Scouts, resulted in familiar 5-4 splits between the court's more liberal and more conservative members, except that in the abortion case, the five votes came down on the liberal side. That tenuous, one-vote balance of power could soon change. In the next four years it is likely that one or more of the current justices will retire, giving the next president at least one court pick. If that happens, a single strategic appointment--Gore replacing a conservative with a liberal or Bush swapping a liberal for a conservative--could decisively tip the court to the left or right. …

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The Supreme Question: Abortion, Gays, Prayer, Parochial Schools, Criminal Rights-In One Close Call after Another, the High Court's Dramatic Rulings Altered the Landscape. Inside a Divided Court, and How the Next President Will Shape It
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