For High Court, a Year Of Living Dangerously
New term marked by volatile issues, like the 'right to die'
A mix of strong constitutional challenges and high-profile topics should make this year's Supreme Court term the most interesting - and perhaps most significant - in years.Skip to next paragraph
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The nation's highest legal body faces a host of prickly cases in its 1996-1997 term, which begins today, ranging from whether Americans have a "right to die" with a physician's assistance to whether states can block federal handgun laws. The court will also take up sexual harassment standards and free-speech issues on the Internet. These rulings may well touch the lives of millions, if not most, Americans.
Indeed, with other hot-button cases like presidential immunity on a civil suit and an Arizona case dealing with the right of a state to declare English its official language, the term will be closely watched.
"These cases directly affect a greater number of people than in previous years," says Stephen Shapiro, legal director of the American Civil Liberties Union, "and by taking the controversial assisted-suicide case, the court is saying early on, 'There will be guaranteed fireworks.' "
For some veteran court watchers, however, that isn't saying much. Last year, for example, the Supreme Court handed down few major rulings other than the landmark Romer case, which invalidated a popular Colorado referendum denying homosexuals political rights. The court last year also heard the fewest cases - 75 - in 40 years. In the mid-1980s the court took 150 cases - a number that has steadily dropped, to 108 in 1991 and 84 by 1994.
This year, however, for reasons typically known only to the nine justices, the court has already agreed to 60 cases - 20 more than it took by the first Monday in October last year. Moreover, numerous legally intriguing petitions - including the first Supreme Court test of the Religious Freedom Restoration Act and the Defense Department's "don't ask, don't tell" policy for gay and lesbian members of the military - are still pending before the court.
The court usually decides by the third Monday in January (Jan. 20 this year) which of some 7,000 annual petitions it will hear and rule on by the end of the term, which is traditionally the last weekend in June. "This court will usually duck a controversy if it can," says one legal expert, "but it can't duck the emotional cases forever, as we are seeing."
Yet even if the cases are volatile, that is no guarantee the court is preparing to dramatically change its legal stripes. "We will have to wait and see," says Mark Tushnet, law professor at Georgetown University. "But I think it is unlikely this will be a year of transformation in constitutional law."
As always, dynamics among the nine court members will play a crucial role. In general terms, the court remains split between Justices William Rehnquist, Clarence Thomas, and Antonin Scalia on the right - and Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer in a more moderate position. That leaves Justices Sandra Day O'Conner and Anthony Kennedy as the swing votes, making them two of the most influential members of the court.
Two years ago the tribunal seemed poised to become a conservative activist court. It made sweeping rulings in such sensitive areas as race, religion, and federal powers - dramatically reducing a legal basis for affirmative action and racial voting districts, loosening the separation between church and state, and, for the first time in 60 years, stripping Congress of certain powers. Justices O'Conner and Kennedy cast the key votes in a half dozen contested 5-to-4 decisions.
Search for a center
Yet last spring, rather than reaffirming the conservative shift, which occurred in tandem with the "Republican Revolution" of House Speaker Newt Gingrich, the court backed off. Instead, last term was characterized by a fitful search for a centrist identity and consensus among the justices. On the most socially divisive cases, the court affirmed basic individual rights and civil liberties, especially in the area of free speech.