Supreme Court's 1992-93 Legacy: A Zigzag Course

Narrow decisions leave others to fill in gaps. A STATE OF FLUX

DURING the Supreme Court's 1992-93 term, which ended this week, the justices handed down potentially important rulings in areas ranging from redistricting to church-state relations. But the term was as notable for what the court did not do as for what it accomplished.

The justices approached controversial issues a few times but didn't issue broad-ranging opinions or provide much guidance to lower courts. And they didn't appear to establish any new directions on major issues.

"It was not a term in which the court saw fit to be bold or innovative," says A.E. (Dick) Howard, a law professor at the University of Virginia. "The court has not crystallized or focused our understanding of major issues. This term has been characterized by marking time or catching breath."

Ruth Bader Ginsburg, if confirmed as expected, will join a court in internal flux. The term's major development, court watchers say, was the disintegration of what appeared last year to be a three-member centrist bloc consisting of Justices Sandra Day O'Connor, David Souter, and Anthony Kennedy.

This term, Justice Souter steered to the left, often joining dissenting opinions with Justices Harry Blackmun and John Paul Stevens. Justice Kennedy, meanwhile, was anchored more firmly in the conservative camp, providing the winning vote in a decision that questioned the constitutionality of voting districts designed to increase minority representation.

"I don't think the centrist bloc ever really existed," says Michael McConnell, a law professor at the University of Chicago. "Now it's plain that it doesn't exist."

If a centrist bloc has proved chimerical, so has the notion of a conservative majority that many saw emerging in the late 1980s. On most hot-button issues, it turns out, there's no working majority at all. The chief exception has been in the criminal-justice area, where the court has maintained a narrow reading of the rights of the accused.

"The court is, on the whole, quite hostile to criminal defendants' rights," says David Cole, a Georgetown University law professor. "That has shown up in procedural cases, where they have limited the right to have constitutional claims heard in federal courts."

Outside the criminal-justice area, few trends are discernible in the 107 signed decisions the court issued last term. Some recent rulings even show the court going in different directions.

For instance, the court seemed to strike a blow against free speech when it ruled in Alexander v. United States that there was no First Amendment violation when the government confiscated a chain of bookstores because seven pornographic items had been found in one of them. But in Cincinnati v. Discovery, the court upheld a strict interpretation of the First Amendment, ruling that a city could not ban vending machines that contain advertising brochures while allowing newspaper coin boxes.

"There's no evident pattern," Professor McConnell says.

OPINIONS not only defy clear trends, but the justices refused - or failed - to establish new legal standards, even when they moved away from established ones. Two examples:

* On church-state questions, the justices issued three rulings that seemed to expand the scope of religion in public life. But they did not overturn Lemon v. Kurtzman, a 1971 case creating a strict three-part test for "Establishment Clause" cases. This test appears to be at odds with the recent rulings.

* On tort reform, the justices upheld a $10 million punitive-damages award - an amount 526 times as high as actual damages - against TXO Production Corporation, a giant oil and gas company. Although there was no majority opinion, a plurality opinion signed by four justices hinted that some other punitive damage awards may be so "grossly excessive" as to be unconstitutional. But there was no indication of what constitutes such an award.

Lawyers are troubled by those decisions. "We have to spend an inordinate amount of time reading the tea leaves ... to figure out what the court means," complains Daniel Rezneck, an attorney with Arnold & Porter in Washington. "And if we can't understand it, then what's the average layperson to think?"

But some argue that the court's lack of sweeping opinions is not due to muddled thinking or lack of common ground. According to this view, the prevailing high court philosophy is judicial restraint, which holds that justices should decide each cases on the merits without trying to promulgate sweeping rules. Thus the court deliberately may be issuing narrow decisions in the expectation that lower courts and legislatures will fill in the gaps.

Chief Justice William Rehnquist's view is that "the court makes a mistake if it wants to ... give great guidance on issues," says John Roberts, a Washington attorney who is a former clerk to Justice Rehnquist. "That's Congress's job. The court's job is to decide specific cases and let legal principles develop over time."

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