Technical Rulings Mark Quiet High-Court Term
Two key cases - line-item veto and sexual harassment - could be grand finale to an otherwise low-profile year.
WASHINGTON — By the end of last June, the US Supreme Court had decided a raft of life-and-death cases that touched millions of Americans and gave the court a confident new luster in its place among the federal branches. This year, however, the high court heads into its final months - usually a time of much anticipation - with few national issues to weigh, and with a low-key, businesslike demeanor.
This spring, technical issues and rulings for smaller interest groups are occupying the justices - not grand constitutional questions. This doesn't mean the court has lost its luster. Actually, experts say a hiatus from tough cases and the scrutiny that goes with them may add to the image of the court as an institution of high and lofty purpose.
Nor is the year a write-off. This month the justices will hear the two cases most likely to characterize this court term: A "line item veto" case could give the White House significant new powers. Also, the most dynamic of four sexual-harassment cases taken this year comes up, something that could change the law by making harassment more a civil-rights claim than a workplace claim.
Still, compared with last term, the court is in a Sargasso Sea of calm. Last April the justices had before them 12 hard constitutional problems - cases like a right to an assisted suicide, religious freedoms for minority faiths, the powers of Congress, separation of church and state, White House immunity, and smut and censorship on the Internet.
This year contains no cases of that magnitude. "I can't name a single Supreme Court decision this year that has important constitutional ramifications for the nation," says Evan Caminker, a law professor at the University of California at Los Angeles and former clerk to the late Justice William Brennan.
Last October, it seemed the high court would make history on race and affirmative action this year. A case out of Piscataway, N.J., could have resulted in a five-vote majority eliminating the formula that allows race to be considered as a factor in making employment decisions for teachers and other public servants. Also, the high court was weighing whether to take a challenge to a sweeping referendum in California (Proposition 209) that would eliminate race as a factor in schools, jobs, and state agencies.
But without comment the court refused to hear Prop. 209, then last fall a civil-rights coalition settled the Piscataway case before it was scheduled to be argued.
Not avoiding tough cases
Few scholars or former clerks suggest that the light constitutional load this year is something that the justices planned. "There's not a lot to suggest they are turning down really juicy or important cases," argues Mark Tushnet of the Georgetown University School of Law here. "But nor are they being very aggressive either."
At the same time, long-time court watchers speak of a certain natural "ebb and flow" of business on the court.
After one particularly heavy year, 1992, in which the Casey abortion ruling to not overturn Roe v. Wade came out - the following year was very light. In fact, it was after a difficult and divisive series of terms - culminating in Casey in 1992 - that the justices reportedly made an informal pact to not revisit abortion and privacy rights as they had been doing steadily.
The denial of an Ohio abortion case three weeks ago is an example, says Ed Lazarus, a clerk for former Justice Harry Blackmun and author of a new book on the court "Closed Chambers." "After the abortion rights of the early 1990s there was an tacit agreement to let tempers cool," Mr. Lazarus says.
Other important decisions pending this term include a First Amendment case out of Arkansas dealing with a former American Nazi Party member turned fundamentalist minister who wanted to be on public TV as a GOP candidate for Congress. The local public station decided that Ralph Forbes was not a serious candidate - though he had won nearly half the state votes in two previous runs for governor.
The high court must decide by June if taxpayer-financed broadcast stations are allowed to make the same kind of editorial choices as private stations - or whether the station must provide an open forum so as not to discriminate against minority viewpoints.
The sexual harassment case, Ellerth v. Burlington, will be heard April 22; the line-item veto, Clinton v. New York City, is scheduled for April 27.
Last June's 9-0 ruling allowing the Paula Jones suit against President Clinton to go forward, in addition to a similarly confident 9-0 ruling striking down a "right to die" seemed to mark a new kind of confidence among the justices. It bolstered the the court's role as the ultimate arbiter of the constitution. Whether the court will continue in that manner is a question for next year, experts say.