Divided Court Searches For a Judicious Center
Term marked by fragmentation and few bold decisions
WASHINGTON — A renewed consensus against discrimination and for free-speech rights mark this year's Supreme Court term, which ends today.
But while the nation's highest legal body usually ends with a "bang" of major rulings, this year's term ends with something of a whimper.
Compared with recent years, the 1995-96 session brought few bold decisions that mark out fresh legal ground, experts say. The keynote cases of the year did include last week's decision to integrate the all-male Virginia Military Institute, placing women's rights in a stronger constitutional position. In May, a ruling to outlaw political discrimination against homosexuals was probably the signature case of the term, since it overruled a popular voter referendum in Colorado.
But the high court, coming off a series of conservative legal thunderbolts last year on race and religion, was characterized by an unusual number of fragmented and mixed rulings this term - with justices often engaged in a fitful search for a centrist position. The most ardent conservatives on the high bench, in fact, Justices Antonin Scalia and Clarence Thomas, were increasingly isolated by year's end - with even Chief Justice William Rehnquist joining a sprawling center coalition in several key votes.
The one strong conservative victory came in March, with a ruling on behalf of "states rights" in a Florida case on Seminole Indian gambling. That victory for local and state control, which builds on a major case (Lopez) last year to limit the federal powers of Congress, also paves the way for a number of states-rights cases next term.
But analysts say these decisions were the exception. "This year on the court, instead of actually making clear law, everything was balancing and splitting and making the tea leaves read 10 different ways," says Kathleen Sullivan, a Stanford University law professor. "It was a technical session. Statutory construction was in. There were no clear sign posts - a sharp left or a sharp right turn."
Court's tentative majority
The tentative majority on the court reflects in many ways the tenor and complexity of the times, particularly on issues of race, say court watchers. A decision in June to eliminate two majority black congressional districts in North Carolina and Texas is an example.
The 5-to-4 decision, which further weakens the 1965 Voting Rights Act, follows two recent confusing decisions that attempted to describe why voting districts created on the basis of race were unconstitutional. Justice Sandra Day O'Conner decided in 1993 that the "bizarre" configuration of the districts was an infringement on white voters. Last year she backed off that rationale and found the districts illegal if race was the "predominant factor" in their creation. This year the justice said the Voting Rights Act might be unconstitutional - but then filed a separate concurrence saying it might not be.
Perhaps it was on free-speech rights that the nine-member court found its clearest voice in 1996 - finishing the term with three cases upholding the First Amendment in political campaign spending, for private contractors employed by government, and for sexually explicit material appearing on cable TV.
The campaign-finance ruling, a case brought by the Colorado GOP, means that while specific campaigns must adhere to federal funding caps, general spending has no ceiling. The court thus opened the door for increased spending even this political season. It also dealt another blow to reform efforts; last week Congress failed to agree on campaign-finance legislation.
Rulings for government contractors had broad implications for freedom of expression and ending the practice of political patronage. A trash hauler and a trucking firm in Kansas and Illinois both brought grievances after being fired for refusing to contribute to local political figures. "Our cases make clear that the government may not coerce support in this manner...," wrote Justice Anthony Kennedy in his opinion on behalf of a Chicago tow-truck operator, who was dropped from city employment after refusing to contribute to a mayoral candidate.
In the cable TV ruling, a deeply fractured decision, the court said firms leasing cable TV were free not to broadcast sexually explicit material; however, it also found that congressional attempts to regulate such speech could run into constitutional trouble - a possible block on Congress's effort to regulate the Internet.
Overall, the court did not follow the strong conservative bent of last year, which paralleled the sentiments and directions of the so-called Republican Revolution championed by House Speaker Newt Gingrich. Last season the court, in a series of 5-to-4 rulings, dealt blows to affirmative action, school desegregation, racially gerrymandered districts - and for the first time appeared to support state funding of religion in a University of Virginia case where an Evangelical student publication said it deserved to receive student activity fees.
Yet in a body whose rhythms are measured in decades, the court is still generally conservative. Five years ago, for example, Justices Harry Blackmun, Thurgood Marshall, and William Brennan sat on the bench, veterans of the liberal Warren Court. Today's rough equivalents, Justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter, are moderates by comparison.
"Five years ago you had passionate conservatives versus passionate liberals," says one scholar. "Today it is passionate conservatives versus moderates."
The court's output has also lessened. This year marked the fewest cases, 77, in two decades.
Scalia thunders from the right
One hallmark of the term is the angry and increasingly lonely dissents of Justice Scalia. The only dissenter in the VMI case (even Justice Rehnquist concurred) Scalia filed a 40-page dissent. He blasted the court in the Colorado gay case. Last week, joined only by Justice Thomas in several decisions, Scalia made his comment on the court's direction in a severe attack in the free-speech patronage ruling: "The court must be living in a another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize."
"Justice Scalia is an angry man," says Rodney Smolla of the Bill of Rights Center in Williamsburg, Va. "He's not happy with a moderate court."