A Defining Term for High Court ; Beginning Today, the Session Could Indicate the Depth of Justices'conservative Moorings

By Warren Richey , writer of The Christian Science Monitor | The Christian Science Monitor, October 4, 1999 | Go to article overview

A Defining Term for High Court ; Beginning Today, the Session Could Indicate the Depth of Justices'conservative Moorings


Warren Richey , writer of The Christian Science Monitor, The Christian Science Monitor


The US Supreme Court under Chief Justice William Rehnquist isn't known for its displays of judicial fireworks. But large and difficult questions loom over the court's docket this fall that will offer Mr. Rehnquist and his conservative colleagues opportunities to fire off an unusual array of constitutional pyrotechnics.

From states' rights to the separation of church and state, the court will decide some of the most profound and politically sensitive issues in American life. At the same time, it will rule on a variety of lesser disputes that will touch millions of people, or at least entertain - from grandparents' rights to nude dancing.

Thus the term will give clearer views of the depth of the court's conservative moorings - at a time when the judiciary is playing a larger role in American culture.

"It is big, it is very big," says Viet Dinh, a law professor at Georgetown University here. "Last year started out as a little bit of a dud but ended up strong. This year starts out with a bang."

As the justices officially begin their 1999-2000 term today, the conservative wing of the court is expected in the coming year to continue its crusade to restore what it views as the proper constitutional balance of power between the states and the federal government.

Taking up where the justices left off with major federalism decisions last June, the court will examine whether state employers are shielded from liability for alleged violations of federal age- discrimination laws. It is a determination that could call into question a wide range of other federal civil rights statutes.

The court will also decide whether Congress impermissibly intruded into state jurisdiction when it passed the 1994 Violence Against Women Act. The law empowers the victims of rape or domestic abuse to sue their attackers for money damages in federal court.

If the law is overturned, women will have to rely on state laws for compensation in such cases, a development that could make it harder for some women to fight their attackers in court. From a states' rights perspective, striking down the federal law would safeguard states' authority and help rein in the power of Congress.

"If they strike [the act] down, then we will know that they really mean business with this federalism," says Michael Dorf, a constitutional law professor at Columbia University Law School in New York.

Two other cases that could produce landmark rulings involve public aid to parochial schools and campaign finance. And in one of the most important health-related cases ever debated at the high court, the justices will decide whether the Food and Drug Administration has authority to regulate the sale and marketing of tobacco products.

But perhaps even more significant than any individual case is the lingering question of the court's future composition. The recent illness of Justice Ruth Bader Ginsburg and the approaching presidential election highlight the precarious balance between conservative and moderate factions. The conservative wing includes Justices Rehnquist, Clarence Thomas, and Antonin Scalia. They are frequently joined by Justices O'Connor and Anthony Kennedy, who in some cases become swing votes. On the liberal-moderate side of the court are Justices Ginsburg, John Paul Stevens, David Souter, and Stephen Breyer.

A single appointment to the court could tip the balance on a long list of contentious national issues. For example, the court may be only one vote away from ending all affirmative-action programs - a ruling that would complicate efforts of universities, city governments, and others to boost racial diversity in their realms.

The same single-vote scenario could affect the use of racial criteria to draw voting districts, an issue expected to heat up after the 2000 census. If such a ruling makes it harder for minority candidates to get elected, Congress and state legislatures could become whiter. …

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