Next on High Court Docket: Key Hot-Button Social Issues

Gender, gay rights, race cases will help define court direction

Beginning today, the US Supreme Court embarks on a six-week closing sprint in an attempt to clarify a host of hot-button constitutional issues ranging from gay political rights to whether women should be allowed to enroll in male-only military colleges.

The unanswered questions of this season: What approach will the nation's highest adjudicator take on social issues, particularly those affecting minorities? Will, like last term, the court continue to render closely contested decisions that forward a conservative judicial philosophy?

By the end of June, the court is expected to decide whether Colorado voters can refuse to let homosexuals participate as a group in state politics and law. It will also rule on the constitutionality of single-sex military schools. And it will clarify two recent decisions that limit race as a "predominant" factor in drawing borders of congressional districts in Texas and North Carolina.

"This court will decide who is entitled to a place at the table," says Rodney Smolla, director of the Institute of Bill of Rights Law in Williamsburg, Va. "It's the old debate about who gets included and excluded in 'We, the People.' "

Such rulings, depending on how they go, offer fertile and even explosive possibilities as issues in the upcoming presidential campaign. The decisions also may prompt the candidates to articulate their visions of the Supreme Court - and the kind of justices they would appoint.

The Colorado gay rights case is a good example. "If the court strikes down Colorado on behalf of gay participation, that will fuel [likely GOP nominee Bob] Dole's judicial activism campaign and energize the Christian right," offers Mark Tushnet, a dean at the Georgetown University Law School in Washington.

Court observers hope the coming decisions shed more light on the court's conservative leanings and what role the court will play in the political climate of the late 1990s.

Last spring, in a series of rulings that left the legal community reeling, the five most conservative justices mapped out several sharp turns to the judicial right. They offered "colorblind" decisions, limiting race as a basis for claiming aid in affirmative action and school desegregation. They forwarded "states rights" by curbing the power of Congress (for the first time in 70 years) to regulate state behavior. And they made a bit less distinct the wall of separation between church and state.

'Virtual decisions'?

What wasn't clear from these decisions was whether they had any practical effect. Coming in the immediate afterglow of the GOP Contract With America and embellished with the vigorous language of Justices Antonin Scalia and Clarence Thomas, did these rulings suggest a dramatic new change toward conservative activism on the court? Or were the rulings less than meets the eye - "virtual decisions" that gave the appearance of dramatic change but that had little impact in the day-to-day life of most Americans?

Generally, legal experts say, it takes a series of decisions to carve out new space on the legal, political, and social terrain. Few rulings can be said to be "landmark" or "bright line" decisions where, in one case like Roe v. Wade, huge social changes are decided in a single day.

Moreover, it is often hard to determine immediately which cases will have a lasting impact. For example, one of the two most important decisions of the 19th century, Plessy v. Ferguson, which reversed many of the legal and moral advances established in the South during Reconstruction, was at the time (1896) viewed as a relatively obscure decision.

Already this year, at least one major case decided last term appears to have had significance. The Adarand decision of February 1995, which weakened affirmative action, was the basis for this year's reverse-discrimination suit brought by white applicants denied admission to the University of Texas law school. So far in the University of Texas case, the Fifth Circuit Court of Appeals upheld the white applicants' position, meaning race could lose ground as an important category in college admissions. That case may reach the Supreme Court next year.

How far will court tilt right?

Most experts today say that in the current "social issues" cases still pending, the question is not whether the court will continue its conservative bent but rather how much.

For example, in the racial redistricting cases in Texas and North Carolina, which are regarded as parallel to the affirmative-action cases, the court is not debating how to maximize race as a factor in drawing districts. It is debating how to minimize it - how to calibrate race as a category like any other category in the shaping of a district.

Legal experts say the most conservative outcomes in the next weeks would look something like this: The court upholds Colorado's right to exclude homosexuals from political protections. It makes race wholly irrelevant in deciding voting districts. And it affirms single-sex military programs.

But some scholars say the moderate wing of the court and the swing votes of Justices Anthony Kennedy and Sandra Day O'Conner will tend to find a middle ground on social issues. "For now, the court will continue to send signals rather than give clear guidelines," says David O'Brien, a law instructor at the University of Virginia and the publisher of a yearly court review.

One of the main undercurrents to watch in coming decisions is states rights - deciding cases in a manner that gives state and local authorities more latitude and deference and that limits federal power. Also called "federalism," this approach is one of the most cherished ideals of Chief Justice William Rehnquist. To date, the concept is at the center of the most important decision this term, in which the court stated that the Seminole Indians of Florida could not sue the state in its effort to introduce casino gambling.

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