Court's Tour de Force Term

Rulings boost states' rights and power of high tribunal itself

After years of tentativeness and ideological drift, the Supreme Court under Chief Justice William Rehnquist is emerging as a distinct and powerful voice in national affairs - perhaps the most powerful since the Warren court in the 1960s.

While divisions remain behind the imposing Corinthian columns, the ending of this year's dramatic term underscores two ascendant themes of the tribunal in the late 1990s: the importance of states' rights and the power of the court in relation to the other two branches of government.

With an unusual confidence and assertiveness, legal scholars say, the high court this term claimed the broadest views of its own judicial power in years. It's new majority theme song seems to be: No More Mr. Deferential.

Not only did the court unanimously reject President Clinton's claim of immunity in the Paula Jones case, it also struck down no less than three acts of Congress, including one that protected religious liberty under the First Amendment, which enjoyed a large popular constituency.

Certainly the term, which ended Friday when the last of 91 rulings was handed down, lived up to its billing as the most significant of the decade. Decisions included a 9-to-0 defeat of a "right" to assisted suicide in an emotional case. The court lowered the wall between church and state by allowing public teachers to do remedial education in New York's parochial schools. It energized a theory of equal or dual power between the states and the federal government.

Yet unlike previous "divided" or "fractious" courts, the justices this year seemed to speak with one voice on key cases, like immunity and assisted suicide.

New sheriff in town

Even when powerful disagreements held sway, as when overruling the Religious Freedom Restoration Act or defeating Congress's attempt to censor pornography on the Internet, the justices agreed their court was the only branch with power to rule on law. "If there is one issue that united the court this year," says Michael Dorf of Columbia University Law School, "it is their own power in relation to the other branches, and their role as the sole interpreter of the Constitution."

"The style and tone of this court is more self-confident," says Mark Tushnet of Georgetown University Law School. "There's no sense that they agonize over decisions, or of a political context. Their tone seems the same whether they are invalidating a statute with unanimous support in Congress or one with no support. Not since the Warren Court have I heard this tone."

Justice Anthony Kennedy's opinion in the religious freedom case typified the underlying thrust of the court. "Our national experience teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of the other branches," he wrote in overturning RFRA.

"If I had to score this term," says Mr. Dorf of Columbia, "I'd say the winners are courts and states. The losers are the Congress and the president."

In recent years, the court's direction and voice have been uncertain. Two years ago a deeply divided tribunal veered sharply right. In the midst of GOP enthusiasm about the Contract With America, the court curtailed, for the first time in 60 years, certain powers of Congress, and it withdrew much support for voting rights and affirmative action.

Then, last year, the court seemed to veer more left. It gave gays in Colorado political rights, nullifying a popular referendum in the process. It also forced the nation's oldest all-male military academy to admit women.

Last year, too, the court was so tentative it handed down seven "plurality" decisions - rulings in which no one argument was persuasive enough to carry a five-vote majority. This year, by contrast, only two plurality rulings were issued, according to Tom Goldstein, who tracks Supreme Court statistics for the Washington law firm of Jones, Day.

Even relations among the nine justices seem improved. "To have judges appointed by five presidents in such agreement [on cases like] assisted suicide" is impressive, says outgoing Solicitor General Walter Dellinger, who argued nearly a dozen times before the court this year.

"The tone of the court was less angry and distrustful," says Mr. Goldstein. "That's a surprise since this term was far more important than last term, and the issues more inherently divisive."

Power to the states

The most significant emerging trend on the court may be federalism or "states' rights." The doctrine, adhered to by a slim conservative majority, argues that states are coequal or have "dual sovereignty" with Washington.

The federalism line extends back to a 1990 case, New York v. US, that allowed states to make autonomous decisions about disposing low-level nuclear waste. Since then the court has steadily expanded its doctrine: in a 1995 ruling (Lopez) that for the first time in 60 years challenged Congress' hold on interpreting the commerce clause of the Constitution; in a landmark case last year (Seminole Indian) that blocked Indian tribes from suing the state under federal law; and now in the last ruling of this term, when the court struck down a provision in the Brady handgun law that requires state police to conduct a background check on gun buyers.

The federalism battle was evident in the issuing of Brady Friday. The ruling matched the most conservative theorist of the court, Antonin Scalia, against its most liberal, John Paul Stevens, who wrote for the minority. Scalia outlined in his characteristic sharp style a concept of "dual sovereignty," saying state police could not be "dragooned" by Congress.

In a rare dissent from the bench, Stevens read from notes and spoke spontaneously for 20 minutes, saying the Brady provisions were more like a requirement for states to report missing children. "It doesn't 'dragoon' local officials," Stevens said, looking at his colleague, "though that's the word the majority opinion seems to like."

Statistics show a continued drift by the court to the right. That is, if the votes of the center of the court, Justices Kennedy and O'Connor, can be matched to the votes of those on the furthest right, Scalia and Clarence Thomas. Last year, Kennedy and Scalia voted the same in 78 percent of cases; this year 87 percent. Last year O'Connor voted with Scalia 83 percent of the time; this year, 90 percent.

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