Court Swings Right With Activist Beat

A SHARPER picture of a more activist and conservative United States Supreme Court emerges this week after two important rulings on racial equity.

Legal scholars agree that one or two high court decisions do not a trend make. But two split (5-to-4) decisions questioning the constitutionality of federal affirmative action and ending a desegregation order in the Kansas City school system fit a new pattern of cautious but persistent rightward turns the court has taken this year.

Whereas in the 1980s and early 1990s, the Rehnquist-led court had become conservative, it deferred much of its power to Congress on social issues. But the decisions of 1995 are showing a budding activism - a willingness to limit the powers of Congress and to overturn precedents dating back to the 1930s.

"We haven't seen this much activism since 1937, when the court struck down New Deal legislation," says Dan O'Brien, who publishes a court update in Charlottesville, Va.

Still, recent decisions show a complex tribunal that is not in conservative lockstep. The major decisions of this spring - nixing term limits and limiting federal interstate commerce laws used for everything from civil rights to crime prevention - have all been split, sometimes fiercely so.

Moderate bloc

The solidifying of a conservative majority on the court has been balanced by the creation of a solid moderate opposition, scholars say. Majority decisions this spring have been by conservative Justices William Rehnquist, Antonin Scalia, Clarence Thomas, and Sandra Day O'Connor.

Justices Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, and David Souter have been in dissent. Justice Anthony Kennedy played the swing role in the most important decision of the season, term limits. Bush-appointee Souter has, in particular, proved to be a shrewd moderate.

"The court is really split in crucial decisions," says Erwin Chemerinsky, a law professor at the University of Southern California in Los Angeles. "They haven't gone for the extremes of Scalia or Thomas, but it is still a dramatic conservative majority."

Recent decisions both on race and federal powers indicate a court reflecting the majority sentiments of the country on racial preferences and shifting power to the states. California soon votes on a referendum to limit affirmative action. Sen. Bob Dole (R) of Kansas has already said he will review some 180 federal programs on racial preferences, and the White House is reviewing its policy as well.

Yet the means by which the court has become more activist are not bold proclamation or eradication of legislation. Rather, it has said to Congress and the executive branch that it must fine tune the criteria and assumptions of longstanding laws.

In this week's affirmative-action ruling, for example, it requires stricter scrutiny to determine whether federal contracts aiding minority-owned businesses actually compensate for past discrimination.

In the important "Lopez" ruling in April, the court requires more thorough proof for federal use of the commerce clause. It said, in effect, that Congress had not proved that guns within 1,000 feet of a school inhibit commercial activity for the city.

Court cautious

"The court has been careful, in these decisions, not to go too far," says University of Chicago law professor David Strauss. "They are saying, 'We don't like affirmative action much, but we aren't going to say never try it, if it is thoughtfully applied.' "

Some judicial liberals, such as Laurence Tribe of Harvard Law School, feel that the conservative trend on the court may be overplayed. In this week's affirmative-action case, for example, he points out that, "The court rejected the position of Scalia that race can never be taken into account, that nothing is compelling enough to make it an issue."

New activism

Other scholars point to the two decisions this week as characteristic of the court's activism.

In the "Adarand" affirmative action case, the court cautiously called for Congress to use the same criteria for affirmative action as do state and local governments, and left open the means for keeping many programs intact.

In the Kansas City schools desegregation case, the majority opinion by Rehnquist was much tougher and less cautious.

Georgetown University law professor Mark Tushnet points out that the Adarand case will have real social impact, while the Kansas City case is more symbolic, since there are few desegregation orders still outstanding in the US.

"Kansas City offered a way for the court to say rhetorically, 'The problems of race discrimination are either part of the past, or are irredeemable,' " he says. "But the court still proceeds cautiously in Adarand, where more is actually at stake."

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