The high court's new `pivot'?

JUDICIAL wags used to say that if there were no Justice Powell, someone would have to invent one. Now that Lewis F. Powell Jr. has retired from the United States Supreme Court after 15 years of service, court scholars are looking for a new ``pivot.'' And they could find one in Associate Justice Sandra Day O'Connor.

Known as the man-in-the-middle, Justice Powell was in recent years a balancer, a compromiser, a tipper of judicial scales. Ideologically, he was neither on the left nor the right. He voted his convictions - not his politics. And he was not afraid to change his mind on an issue or to alter his vote in accordance with the merits of the particular case.

Powell's votes - more often than his high court colleagues' - supplied 5-to-4 majorities on such key issues as capital punishment and affirmative action.

He was the pivot. But now he is gone and the court is without such a balancer.

Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Byron White are usually firmly on the right. Associate Justices William Brennan and Thurgood Marshall vote predictably on the left. And Associate Justices Harry Blackmun and John Paul Stevens are the centrists - but often join with Messrs. Brennan and Marshall.

This leaves Powell's replacement, federal judge Robert Bork, who was tapped by the White House Wednesday. His judicial record indicates a strong conservative bent.

Then there is Associate Justice O'Connor.

Ronald Reagan's first appointee to the court in 1981 was supposed to give the tribunal a strong tilt to the right. But to the delight of centrists - and to the horror of many right-wing ideologues - the nation's first female justice has turned out to be independent, unpredictable, and exclusively judicial in her rulings.

Is it possible that Mrs. O'Connor will fill the role vacated by Justice Powell as the court's new ``pivot''?

Court analysts are reluctant to make such a flat prediction. But they don't rule it out. ``She may not become a Justice Powell. But she could become someone like that,'' concedes Bruce Fein, an American Heritage Foundation scholar.

University of Virginia court-watcher David O'Brien says that O'Connor could ``follow the path of [Associate Justice] John Paul Stevens, who was moderate-to-conservative and is now more liberal.'' Mr. O'Brien says that she is ``more independent ... and not as ideological as Rehnquist or Scalia.''

Constitutional specialist Ronald K.L. Collins says: ``She wouldn't have the intellectual clout [of a Powell] but she could be the `pivot' if she moves more to the center.''

Collins adds: ``Her place in history may be at stake.''

Presumably what he means is whether O'Connor will be viewed by future generations as an independent judicial thinker or a captive in a court that migrated steadily to the political right at the end of the 20th century.

She may unwittingly end up with the latter characterization because of future appointments. But she has already established her independence - without compromising her conservative judicial philosophy.

O'Connor's recent votes in two key areas - affirmative action and military sovereignty - illustrate this point.

She sided with a liberal-to-moderate majority in an affirmative action ruling in March that extended the concept of affirmative action not only to racial discrimination on the job but to gender bias in the workplace.

The female jurist stipulated, however, that she was narrowly evaluating a particular case. And she stated that she agreed with the dissent that ``an affirmative action program that automatically and blindly promotes those marginally qualified candidates falling within a preferred race or gender category, or that can be equated with a permanent plan of `proportionate representation by race and sex''' would violate federal law.

This decision in a California case allowed the promotion of a qualified woman over a man who had slightly higher test scores in a county transportation agency.

O'Connor opted in different directions - voting with the Reagan administration in one case and against it in another - in a pair of significant and controversial rulings involving military authority that were handed down as the court drew its term to a close last week.

She cast her vote with a 5-to-4 majority to give the armed forces sweeping authority to courtmartial service personnel even if their crimes occurred off base and were not connected to their service.

She strongly dissented, however, in another 5-to-4 decision where the majority said the military was exempt from lawsuits by soldiers harmed by programs pursued in the national interest. The case involved a claim against the Army by an enlistee who suffered injuries as a result of his participation in a secret military drug experimentation program where he was given the hallucinogen LSD without his knowledge.

O'Connor - siding against her conservative colleagues - said that in her view ``conduct of the type alleged in this case is so far beyond the bounds of human decency that as a matter of law it simply cannot be considered a part of the military mission.''

Sandra Day O'Connor's role as the court's potential new pivot will almost certainly become clearer next term with cases on the highly volatile issues of school prayer and abortion.

She angered the religious right when she cast a vote against Alabama's moment-of-silence law, proclaiming that its religious intent violated the First Amendment. She did indicate at the time, however, that she might be inclined to back state legislation where such school ``quiet time'' had a secular purpose. A case from New Jersey will provide such an opportunity.

On abortion, O'Connor has upheld the right of states to restrict abortions late in pregnancy. But her rationale was not so much an unwavering rejection of abortion as an opposition to federal intrusion on states' sovereignty. Another case headed toward the high court tests the right of states to require teen-agers to observe a waiting period (so that parents may be informed) before an abortion is performed. Here again, O'Connor's vote may be pivotal.

A Thursday column

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