No liberal court in sight. Even a Dukakis win might not alter high court makeup
Boston — Regardless of who occupies the White House in January, the United States Supreme Court will continue to march down a moderate-to-conservative path - occasionally veering sharply to the right on issues of criminal justice and perhaps abortion. This is the assessment of prominent court-watchers as the justices take their seats for the 1988-89 term today.
The election returns in November are extremely important for the nation's highest judicial tribunal, however. The results will not only indicate replacements for justices likely to retire, but assess the mood of the nation on critical issues like the death penalty, affirmative action, and abortion, these experts say.
The effect of the next president on the court will be combined with these dynamics now present:
The addition of Associate Justice Anthony Kennedy to the high court after the failed appointments of Reagan nominees Robert Bork and Douglas Ginsburg gives the court a 5-to-4 conservative majority.
Justice Kennedy sat on only about one-third of the cases after his nomination was affirmed late last term. This left the court with a 4-to-4 tie in several key cases. His votes, however, in rulings that reconsidered the application of affirmative action and allowed public funding for religious groups espousing ``chastity'' for youth, indicate a strong leaning to the right.
``Kennedy will disappoint those who opposed Bork,'' says University of California law dean Jesse Choper.
The court's most liberal members - Associate Justices Harry Blackmun, William Brennan, and Thurgood Marshall - are also its most senior judges in age. The latter two are octogenarians. ``The prospect of two or all three of them retiring in the next four years is very likely,'' says University of Virginia political scientist, David O'Brien, a highly respected court watcher.
Professor O'Brien says that a George Bush presidency could lead to Supreme Court appointments that would solidify this panel's conservative majority. The election of Michael Dukakis, on the other hand, would likely only hold the line for the left of center with liberals nominated to replace liberals on the bench, he explains.
Despite this conservative trend, the concept of stare decisis, or settled law, may restrain the court from abrupt major changes in direction. Court experts point out that justices are reluctant to upset long-relied-upon processes, if not in conflict with the Constitution.
``Stare decisis means a great deal to the court,'' explains former Associate Justice Arthur Goldberg. ``And even judges who feel in their guts that they ought to do it [overturn settled law] will be restrained,'' says the John Kennedy appointee, who served on the Supreme Court in the 1960s.
Nevertheless, the court's new majority may not be reluctant to move in directions that would undo what many conservatives consider the activist, social excesses of the liberal majority under Chief Justice Earl Warren in the 1950s and 1960s.
``This is a court waiting to change,'' says conservative Judge Kenneth Starr of the US Court of Appeals for the District of Columbia Circuit. Judge Starr, a Reagan appointee, talks about the Supreme Court moving into a period of ``judicial deference and restraint'' in which the justices defer to Congress and state laws and away from the ``reform agenda'' of recent decades.
A litmus test of the ideology of today's Supreme Court could come early with the hearing on Oct. 12 of an affirmative-action case, Patterson v. McLean Credit Union.
Late last term, the justices announced that they would reconsider Patterson (which they had heard earlier) - a case involving alleged racial harassment in the workplace - in order to reassess the validity of a 1976 ruling which held that post-Civil War antidiscrimination statutes apply to private as well as public bias.
The vote to rehear was close, 5 to 4, with Justice Kennedy providing the margin. Liberal-to-moderate dissenters, Associate Justices Blackmun, Brennan, Marshall, and John Paul Stevens, vigorously objected that just by taking the case the court is sending a signal to racial minorities that it now may turn its back on civil liberties and civil rights.
Constitutional analyst Bruce Fein says, however, that the justices are not likely to broadly reject affirmative action but to moderate its effects.
A pair of drug-testing cases to be argued early in November - Burnley v. Railroad Labor Executives Association and National Treasury Employees Union v. Von Raab - could clearly indicate how the court views the balance between individual rights and public safety.
The federal government's position is that such testing of public workers - even without probable cause - is not an invasion of individual privacy but necessary for national security and public protection.
Unions oppose mandatory urinalysis, citing Fourth Amendment guarantees against ``unreasonable'' searches and seizures.
Yale Kamisar, University of Michigan law professor and authority in the area of criminal justice, comments that the ``Supreme Court may say that concerns about safety justify suspicionless drug testing in certain sensitive areas.''
What will be significant, Professor Kamisar insists, is ``not whether the government wins these cases, but how narrow the victory is.''
Key Supreme Court decisions to watch for Constitutional analysts will be closely watching how the justices vote on certain key areas to pinpoint the ideological direction of the Supreme Court. Among them: Affirmative action. In a politically symbolic, high-profile case, the justices will decide whether employees may continue to sue employers for racial harassment under post-Civil War statutes. If the court decides they cannot, it could invalidate earlier rulings in this area and sharply change the course of future civil rights litigation. (Patterson v. McLean Credit Union.) Drug testing. A pair of cases could well establish important precedent in a new area for the court. One case involves the mandatory blood, breath, and urine testing of workers involved in certain train accidents and fatal incidents. The other urine testing of United States Customs Service employees. Here the justices must weigh Fourth Amendment protections for individuals against government responsibility for public safety. (Burnley v. Railroad Labor Executives Association and National Treasury Employees Union v. Von Raab.) Sentencing. This is a criminal-justice matter but, more important, a test of separation of powers. The court will consider the legality of the 1984 Sentencing Reform Act. The challenge contends that Congress violated the separation-of-powers doctrine by assigning to a judicial body the power to issue detailed sentencing guidelines. Hundreds of cases around the US now are in limbo awaiting this decision. (United States v. Mistretta.) Death penalty. Amid growing controversy surrounding how capital punishment is administered, the justices will decide whether it is constitutional to prescribe execution for anyone under age 18 and whether it is constitutional to put to death mentally retarded criminals. (High v. Zant and Penry v. Lynaugh.) Child welfare. The court will break new ground in the area of placement and protection of children. In one instance it will decide an important jurisdictional dispute surrounding the adoption of American Indian children by non-Indians. In another, it will determine the liability of child welfare agencies in child-abuse cases. (Mississippi Band of Choctaw Indians v. Holyfield and Deshaney v. Winnebago County Department of Social Services.)