Court rebounds from Bush v. Gore

Watermark case of '01 term did not diminish justices in public's eyes. But legal analysts still stew.

In his stinging dissent in the Bush v. Gore decision last December, Justice John Paul Stevens warned of potentially grave damage to the stature of the US Supreme Court. The real loser, he wrote, is "the nation's confidence in the judge as an impartial guardian of the rule of law."

The justices' controversial intervention into the presidential election - virtually guaranteeing a Bush victory - cast a pall over the court's 2000-01 term.

Nonetheless, public confidence in the nation's highest court has rebounded. A recent Gallup poll found that 62 percent of Americans approve of the way the high court is handling its job - the same percentage that approved in September 2000, three months before the Bush v. Gore decision.

"All of the justices have tried to project an image of life is back to normal within the Supreme Court, which suggests to me that things had gotten pretty divisive in there," says Michael Dorf, a law professor at Columbia University and former Supreme Court clerk. "As far as the general public goes," he says, "people have moved on."

In a term with several major decisions, the Bush v. Gore involvement stands out as a critical moment in the history of the court and of the nation, and it has sparked a still-raging debate among legal scholars.

Among its key decisions, the court: more sharply defined the parameters of federal regulatory power, expanded the rights of immigrants facing deportation, approved the use of some racial criteria in redrawing congressional voting districts, and slightly lowered the wall separating church and state by mandating government neutrality toward religious groups seeking equal access to public facilities.

The same broad dynamics that have produced majority opinions in years past also came into play this year. The five-justice conservative majority - made up of Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas -continue to expand their view of a revivalist form of federalism.

Meanwhile, the liberal wing of the court - Justices Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer - prevailed in a number of important cases by gaining the support of one or more of the conservatives, usually Justices O'Connor and/or Kennedy.

This swing vote feature of the court's decision-making injects a level of unpredictability into the outcome of many cases. And it makes it increasingly difficult to categorize the Rehnquist court.

The inscrutable Rehnquist court

Although the high court under Chief Justice Rehnquist is considered by many liberals to be a conservative juggernaut, some conservatives view the full range of its emerging constitutional jurisprudence as ad hoc, unprincipled, and often downright inscrutable. "There are no principles, there are no trends," says Michael Carvin, a Washington-based lawyer who specializes in Supreme Court practice.

He says many of the Rehnquist court's rulings represent little more than a series of case-by-case decisions reflecting shifting coalitions among the justices.

Indeed, it sometimes seems two completely different courts are at work:

* The same court that expanded Fourth Amendment protections against high-tech government snooping inside private homes also ruled that the Constitution does not bar police from arresting those suspected of fine-only offenses - such as driving without a seatbelt.

* The court that expanded the scope of the Americans With Disabilities Act to cover disabled professional athletes engaged in championship competitions nonetheless barred disabled state workers from using the same legislation to sue their bosses for alleged discrimination.

* The same court that said political parties don't have a First Amendment right to make unregulated contributions to their own candidates during an election campaign ruled later that same week that tobacco companies have a First Amendment right to position advertisements near schools and playgrounds.

Inconsistency isn't the only criticism of the court. Many analysts say the most significant - and alarming - trend in recent years is that the tribunal is becoming increasingly aggressive in limiting or bypassing the authority of others while upholding or bolstering its own authority. "This is a court confident in the belief that it can resolve disputes better than any other institution around," says Walter Dellinger, a law professor and lawyer specializing in constitutional cases.

The prime example: Bush v. Gore.

The US Constitution provides a mechanism to resolve a disputed presidential election - in Congress. But the court's ruling last December short-circuited that process and left it to the justices themselves - an unelected branch of government - to end the dispute.

Record on striking down laws

Laurence Tribe, a Harvard Law School professor who represented Vice President Al Gore during the dispute, sees the court's willingness to second-guess or supplant the work of politicians as a direct threat to democracy. He says the Rehnquist court has struck down more federal laws than any high court in the past half century.

In a legal memo to members of the US Senate made public recently, he writes in part: "By continually narrowing the authority of the most directly representative branch of the national government, the court has thwarted the basic plan through which the Constitution preserves democracy and protects liberty."

Conservative legal analysts counter that the court's attempts to more sharply define the power balance between Congress, the federal agencies, and the states is a protection of liberty by reining in the ever-expanding power of the national government.

Some also see the court's intervention in Bush v. Gore as an example of leadership at a critical moment, with the justices risking their own stature to prevent what they viewed as a potential national crisis. The ongoing debate has set the stage for what may be the toughest confirmation hearings yet in the Democratic-controlled Senate should any justice decide to retire.

(c) Copyright 2001. The Christian Science Monitor

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