High Court Term Starts Amicably, But Divisive Cases Are Looming

By , Staff writer of The Christian Science Monitor

THE trajectory of a Supreme Court term is like a college football season.

After the court's opening fanfare in October, there follows an uneventful period during which the justices hear oral arguments and issue a few ``easy'' decisions that generally attract little public attention - like early-season gridiron contests before the Florida States and Notre Dames clash.

Then, as the suspense among court-watchers builds during the spring, the term usually ends in a flurry of June decisions by a divided court in major cases: the bowl games of jurisprudence.

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The current Supreme Court term is following the pattern. The bulk of the justices' time since Oct. 4 has been spent listening to advocates in cases that will be decided later, and accepting or rejecting new appeals. It was not wholly surprising when the court announced two decisions Nov. 10 - just a month after the lawyers' arguments - since the 9-0 votes in each case suggested that the rulings were simple.

The apparent ease with which the justices decided these cases and the absence of biting dissents shouldn't obscure the fact that this term, like most, almost certainly will see its share of heated divisions among the jurists.

Among the hot-button issues the court will grapple with this term are the rights of minorities under the Voting Rights Act and of protesters at abortion clinics. Another major topic is California's business tax system, which has been challenged by international corporations.

And with two recent lower-court rulings against the military's ban on homosexuals - the most recent one this week - the issue is bound to end up on the Supreme Court's docket soon, perhaps even this term.

One of the cases decided this week demonstrates how hard it is to tell which of these upcoming issues will be divisive. The widely reported Harris v. Forklift Systems Inc. - in which the high court made it easier for women (and, for that matter, men) to sue for sexual harassment in the workplace - was expected by some legal scholars to be hotly contested.

It wasn't.

``Cases that are decided quickly are often unanimous, since the justices have no trouble reaching agreement,'' says Suzanna Sherry, a constitutional law scholar at the University of Minnesota Law School. ``Such cases can be dull because they aren't controversial. The interesting thing about the sexual-harassment case is that the justices found it noncontroversial.''

Dr. Sherry continues: ``The justices' unanimity in this case shows how well-established it is that this kind of conduct is unacceptable. But it will take a lot more cases in the lower courts to flesh out exactly what actions are prohibited.''

In the other case decided last week, the high court ordered a South Carolina school district to reimburse a family $35,000 for tuition and boarding expenses at a private school where the parents enrolled their daughter, who had a learning disability. The federal Individuals with Disabilities Education Act (IDEA) requires school districts to provide or pay for ``appropriate'' special programs for students with learning disabilities.

In 1985, the parents of high school student Shannon Carter learned of their daughter's reading disorder and asked the Florence County school district to design a program for her. Dissatisfied with the district's plan, Shannon's parents, without approval of the school district, enrolled her in a private special-education school that was not certified by the state Board of Education. After the girl graduated, her parents sued the school district under IDEA for the private-school expenses.

Lower federal courts ruled for the Carters, finding that the district's remedial plan was inadequate and that the private school was qualified to provide the needed instruction. The Supreme Court affirmed their decisions.

WHILE two decisions do not a trend make, it can be observed that in both of these early cases the justices interpreted a statute broadly to give generous relief to individuals asserting rights under the legislation. This has not always been a hallmark of the conservative justices who constitute a majority of the Rehnquist court.

Besides the court's view of statutory interpretation, legal scholars also are waiting to see how the chemistry among the justices bubbles this term.

What appeared to many scholars to be a significant new centrist bloc - comprising Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter - that coalesced at the end of the 1992 term seemed to splinter last term, as Justice Kennedy drifted right and Justice Souter tilted left.

This term, of course, a new member, Ruth Bader Ginsburg, has been added to the mix. In her first opinion on the high court, Justice Ginsburg added a short concurrence to Justice O'Connor's main opinion in the sexual-harassment case.

Some observers suggested that Ginsburg was just chiming in with a ``me too'' on a subject she cares about.

Sherry rejects that view, however.

``This is a very smart woman,'' she says of the new justice. ``She's up to something, even if we can't quite figure it out, yet.''

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