WASHINGTON — New campaign firefights over federal judges, affirmative action, and same-sex marriage laws may presage a larger legal issue: how the upcoming presidential election will influence the makeup of the US Supreme Court.
The nine-member court's glacial pace of change is legendary. But with current justices almost evenly split between conservatives and moderates, and the possibility that retirements will open several high court slots, November's vote may be the most important for the Supreme Court since 1968.
After that election, a confluence of departures led to four Richard Nixon-appointed justices, the most in recent history. Similarly, the next president will likely be able to influence outcomes on the nation's highest legal body - from race laws to religious exercise to the relationship between Washington and the states - well into the next century.
"There is a lot at stake here," says one court monitor, Rob Boston of Americans United for the Separation of Church and State in Washington. "I'm not sure people have focused on it yet."
Since 1992 the antiliberal judicial trend, dating to the Reagan-era, has been checked by President Clinton's two new justices - Stephen Breyer and Ruth Bader Ginsburg, both moderates. The result is a divided court that leans strongly to the right - but is not captured by it, as last week's 6-to-3 decision on gay rights indicated.
That conservative profile, however, may change markedly if Mr. Clinton wins. "If he is reelected, Clinton will appoint a majority of the court," states Thomas Jipping of the Free Congress Foundation, a former associate of Justice Antonin Scalia.
Crucial will be who and how many retire. For now, the question is still purely speculative. Attention centers on Chief Justice William Rehnquist, or Justice Sandra Day O'Connor, both conservatives. Justice John Paul Stevens, a leading liberal, is the oldest member among the nine black robes.
Court insiders, including law clerks, last year told reporters that Justice Rehnquist had planned to retire after the '92 race, that the election of a Democrat delayed his departure, but that the chief justice was leaving "no matter what" after '96.
"Even if it were only Rehnquist, that would be significant," says James Simon, author of "The Center Holds." "It would change the balance."
Still, some scholars think Rehnquist won't give his place to a Democrat-appointee just as his legacy of "states rights" is on the rise. In the past year, two key rulings supported for the first time in decades the sovereignty of states, a cause the chief justice championed alone in the 1970s.
Clinton Supreme Court nominees would likely follow the pattern of the two justices he has already appointed - moderate judges who do not have a liberal paper trail that would help sink their chances of confirmation by the Senate Judiciary Committee. The result would likely be an expansion of the center of the court - isolating the court's right wing, Justices Clarence Thomas and Scalia.
Should Bob Dole win, the court will likely maintain a conservative edge. But the GOP needs two appointments to make a significant difference, given the court's makeup. GOP sources say Mr. Dole's first high court selection will be designed to please the party's conservative wing. Dole has made "liberal judges" a campaign issue.
"They aren't likely to make a Souter-type mistake again," says one insider, referring to President Bush's appointment of David Souter, who has disappointed the right by consistently voting against Scalia, Thomas, and Rehnquist.
An even more conservative court would likely end affirmative action and racial preferences. It would presumably agree, for example, with a Fifth Circuit Court of Appeals decision in April (Texas v. Hopwood) to end racial admissions policies at the University of Texas law school. The case, which the Supreme Court is expected to take, could overturn the famous 1978 Bakke ruling, which upheld the principle of affirmative action in the case of a white engineer who charged that reverse discrimination had blocked his admission to medical school.
Dole judges would likely be more skeptical of individual rights not clearly spelled out in the Constitution, what jurists refer to as a "penumbra" of laws dealing with rights that have been interpreted by later courts as constitutional. It would likely continue a series of decisions to use the 10th and 11th Amendments as reasons to "devolve" federal power to state and local authorities. It is likely that a conservative court would support term limits.
A "Clinton court," if Justices Ginsburg and Breyer are examples, would be less hostile to federal powers. It would preserve some affirmative-action policies, and uphold the gray area. On Friday, for example, the administration asked the Supreme Court to overturn the Hopwood racial admissions ruling, saying the law, now in force in Texas, Louisiana, and Mississippi, would effectively return law schools to "their former 'white only' status."