The Court Is Sitting
IT would be hard to top the Supreme Court's 1991-92 term for the kind of drama that, to those who follow these things, is as engaging as the baseball pennant races. The term opened a year ago amid national furor over the Clarence Thomas confirmation hearings, and it ended in June with two surprise rulings - on school prayer and abortion - that capsized many observers' notions about the direction the court is sailing.Skip to next paragraph
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The Supreme Court term that opens today may offer less excitement, though one can never be sure: Cases involving abortion clinics, capital punishment, and freedom of religion are already on the court's docket, and more cases will be added. More than for the outcome of specific cases, however, the term may be notable for developments in the dynamics among the nine justices.
The end-of-term decisions stunned court watchers not so much for what the justices did as for what they didn't do. The court refused to overturn precedents that barred any form of prayer from public schools (in this instance a nonsectarian invocation had been offered at a junior high school graduation ceremony) and that identified a constitutional right to abortion. These were among the key precedents that a court now dominated by Reagan-Bush appointees was expected to topple at the first opportunity.
In both of the 5-to-4 rulings the pivotal votes were cast by a triumvirate of moderate-conservative justices - Sandra Day O'Connor, Anthony Kennedy, and David Souter - who grew uncomfortable with the ideological lurch to the right anticipated by the presidents who appointed them.
This term will be watched closely to see if this trio has indeed staked out a position in the center that will counterbalance, on at least some issues, the strongly conservative leanings of Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas.
Make no mistake: This is a conservative court. On many issues, especially in criminal law, the Reagan-Bush appointees command 6-to-3 and even, with the addition of Justice Byron White, 7-to-2 majorities.
Still, observers who anticipated that the conservative majority would march in lockstep were mistaken. Within the dominant bloc are various shades of conservatism and varying approaches to constitutional interpretation and jurisprudence, especially on the deference to be paid to longstanding precedents.
Whereas some observers once thought the Rehnquist court should really be called the Scalia court, now some predict that it will become the Souter court. Court watchers will be studying this term with fascination.