Supreme Court Surprises Pundits

Justices defied expectations last term, and criminal, religious cases this year harder to predict

THE new Supreme Court term begins today with a docket of cases that has grown increasingly lean as the court has tried to step out of many social and political controversies.

Although the court is now handily dominated by the conservative appointees of Republican presidents, it defied any pat expectations last year by producing a mixed and subtly shaded raft of opinions.

This term presents an ever- tougher docket on which to predict the direction of the court.

It faces a battery of basic issues of crime and punishment - from whether it is constitutional to execute a man who may very well be innocent to whether sharing a prison cell with a heavy smoker is cruel and unusual punishment.

It will confront a stark question on the free exercise of religion in a case challenging a south Florida ban on animal sacrifices by followers of an African-Cuban religion.

It must also address the separation of powers in the American government - weighing the court's own ability to stand in judgment of decisions made by the president and by the Senate.

Abortion-rights issues will also come before the court again, in a couple of different forms.

By the end of last term, the court's coalitions had begun to form a recognizable pattern. The center was held by three of the newest justices: Sandra Day O'Connor, Anthony Kennedy, and David Souter.

Justice Kennedy was the surprise moderate vote on issues such as prayer and school graduations and abortion rights because he had written very conservative opinions on both subjects before. Justice Souter, many close court-watchers believe, is emerging as a fine writer of opinions and an intellectual leader of the center of the court.

THE gravest case on the docket this term is that of Leonel Herrera, sentenced to death in Texas for the murder of two policemen in 1981. Long after the trial, new evidence emerged that Mr. Herrera's late brother, Raul, had confessed to the murders - to his lawyer, his cellmate in prison, and to a former schoolmate. And Raul's son signed an affidavit that he had witnessed the murders and that his father committed them. Leonel, now on death row for the crime, was not present, he said.

Herrera has had no success in court so far and his case raises a painful question: Is it constitutional to execute an innocent person? It would seem not to be, but it is difficult to find legal principals that allow federal courts to second-guess state courts on basic guilt or innocence. Herrera's attorneys could not find votes on the Supreme Court to stay his execution while the new evidence was heard. Instead, they petitioned the high court to review the case itself, since that requires only four votes .

This court has cut back sharply on letting technicalities of law and procedure help plainly guilty criminals escape punishment. This case presents the flip side of that effort, according to Herrera's attorneys: A probably innocent man may be executed on a technicality.

In other death penalty cases, the court will determine if the death requirements in the mandatory sentencing guidelines of Texas, Idaho, and Arizona are tight enough to pass muster.

The most prominent First Amendment case coming up before the court this year is a challenge by the Church of Lukumi Babalu Aye to a city ordinance in Hialeah, Fla., barring animal sacrifice in a ritual or ceremonial manner. The church practices Santeria, a 4,000-year-old West African religion altered by exposure to Catholicism in Cuba.

The church argues that the ordinance is clearly targeted at the religious practice. The city argues that the ordinance prevents cruelty to animals, public-health problems from improper disposal of remains, and the exposure of children to a form of violence.

Two years ago, the court ruled that laws could infringe on religious practices so long as the laws were generally applicable and not targeted at a religion. This new case gives the court the chance to either show the limits to how far laws can go or to open the gate much further.

The court will review the Senate impeachment of a federal judge, Walter Nixon, but only after determining whether the Constitution gives the court that power. It also is expected to agree to hear a challenge to a presidential order returning Haitian immigrants on the high seas to Haiti. The question is whether the president is bound by the rules of due process outside US borders.

Tomorrow the court will hear arguments in a case that uses law aimed at the Ku Klux Klan during Reconstruction against Operation Rescue activists blocking access to abortion clinics.

In a more direct approach to the abortion issue, the court is expected to agree later this fall to hear a challenge to very strict and sweeping abortion bans enacted by the Guam legislature.

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