Enter, Stage Right

By Alain L. Sanders

They showed their colors last term. From civil rights to criminal procedures to privacy protections, the Justices of the U.S. Supreme Court took a series of dramatic rightward steps that made them the most conservative high bench in a generation. This week, as the Justices open a new session, the question is not whether the court will continue along that path but how far and how fast it will go. Says University of Chicago law professor Richard Epstein: "Some decisions that people on the left saw as benchmarks are contestable again."

That is a chilling thought for civil libertarians -- and a comforting one for conservatives. With abortion, race discrimination, religion and obscenity again crowding the docket, the court is now in a position to press on with much of Ronald Reagan's unfinished social agenda.

Though few observers expect wholesale reversals of established precedents, most would agree with Harvard University law professor Laurence Tribe that the court is likely to "tune them down." Says Tribe: "Americans have been accustomed to the idea that the Supreme Court is a refuge for the disadvantaged, the dispossessed and the dissident. We are entering an era in which increasingly the court will be less a court of last resort." One result is that many would-be federal lawsuits will be filed in more liberal state courts; another is that legal disputes may be translated into political battles, to be fought in the corridors of state legislatures and the halls of Congress.

Legal scholars trace the origins of the court's rightward swing to Richard Nixon's four appointments to the high bench. Reagan gave the right a working majority by naming his new Justices -- Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy -- on the basis of conservative ideology. The three appear to have forged an alliance with Byron White and William Rehnquist, whom Reagan elevated to Chief Justice in 1986. Together, says Geoffrey Stone, dean of the University of Chicago Law School, they form a "gang of five that increasingly operates without taking into consideration the views of the other four Justices."

The pivot -- at least on issues like abortion and religion -- seems to be O'Connor. "Liberals have a chance of picking up her vote in some cases," notes American University law professor Herman Schwartz, and so many lawyers target her as the vital swing vote. But that narrow opening may be lost if George Bush gets to fill a seat. With three of the liberal Justices over 80, it is possible that one or more places will become vacant in the next four years. And Bush "has shown nothing to indicate the move of the court is wrong," says Columbia University law professor Vivian Berger. Herewith a look at some of this term's key issues:

Abortion. Last July the Justices gave states greater power to regulate the right of abortion. Now they will consider two cases from Ohio and Minnesota involving the constitutionality of parental-notificatio n rules for minors seeking to terminate pregnancies. In another case, they will review an Illinois statute requiring that abortions be performed in strictly licensed facilities. Upholding the Illinois law would cripple small clinics and, in the view of Duke University law professor Walter Dellinger, could "make abortions nearly impossible to obtain" in many instances.

Right to Die. For the first time, the court will delve into the murky questions surrounding the hopelessly sick when they consider the case of Nancy Cruzan, a comatose patient in a Missouri hospital. The high bench is being asked to decide whether there is a constitutional right of privacy broad enough to permit her parents to request the withdrawal of feeding tubes so that she can die with dignity.

Race Discrimination. The court's conservative turn was underscored by last term's civil rights and affirmative-action rulings, which made it more difficult both to prove discrimination and to obtain preferential treatment. This week the Justices will explore how broad is the power of federal courts to remedy discrimination. Taking up a volatile dispute from Yonkers, N.Y., the court will determine if a judge may compel city council members to vote for a housing-desegregation plan. Later, in a case from Kansas City, it will decide whether a judge may order tax hikes to finance a school-desegregation plan.

Religion. The wall separating church from state will be tested in a case from Omaha that also touches on freedom of speech. The court will review the constitutionality of the federal Equal Access Act, which opens up public schools to student religious groups when any "noncurriculum-related" student group is allowed to meet on school grounds.

Obscenity. This week the court will review a Dallas ordinance that imposes strict licensing and zoning requirements on sexually oriented businesses. Later this term an Ohio case will ask whether there is a First Amendment right to possess lewd photographs of children. In last term's dial-a-porn and flag- burning cases, the Justices maintained a tolerant free-speech stance; court watchers are waiting to see what change may occur.

Criminal Law. The Justices are again taking up a raft of cases involving confessions, searches and seizures, as well as half a dozen death-penalty appeals. Questions of privacy and personal integrity often dominate criminal cases. But because they involve drug crimes, say civil libertarians, many recent decisions have fallen victim to the war against that scourge. "The rules are going to be applied against all kinds of people who have nothing to do with drugs," warns New York University law professor Norman Dorsen, president of the American Civil Liberties Union. "If the trend continues, many people who say, 'This is a free country, and I can do such and such,' will find that they can't."

/ The court's conservative cast is already affecting the kinds of disputes that are brought before it. Observes University of Michigan law professor Yale Kamisar: "The Warren Court took cases where Government won ((in lower courts)). This court seems to be taking cases where Government lost below. It is putting liberal judges back in line." Civil rights and civil liberties groups have taken note. Ronald Ellis of the NAACP Legal Defense and Educational Fund admits that, in order not "to tempt the fates," his organization has refrained from appealing cases to the high court and is considering filing more suits in state courts.

Steering issues away from federal courtrooms is what the Justices' conservative thrust seeks to accomplish. "This is a court that is happy to throw social issues back into Congress's lap," says University of Virginia law professor A.E. Dick Howard. "It wants legislatures to spell out how laws should apply." The attitude appalls many liberals, who argue that the basic purpose of the Bill of Rights is to protect the weak and unpopular from the tyranny of majority rule by legislatures. But the court's deference toward the political branches cheers many conservatives. "That's democracy," insists court commentator Bruce Fein. "Let the political process fill its traditional role."

This is precisely what seems to be happening. Abortion, which was thrown out of the judicial closet by last term's decision granting states more regulatory power, is fast blossoming into a major electoral issue in state and local races around the country. The matter is expected to play an important role in the gubernatorial elections in Virginia and New Jersey this year. State legislatures, meanwhile, are being hit with a flood of pro-choice and pro-life proposals.

Civil rights groups have also been planning a political assault. The upshot of last term's rulings, says University of Miami law professor Mary Coombs, was that everyone "exists as a separate, individual, raceless, genderless person who is allowed to succeed or fail in terms designed for middle-class white men." Several U.S. Senators are drafting legislation to try to overturn some of those discrimination rulings.

But the effects of the court's move to the right are too widespread to be easily altered. The changes wrought by the high bench -- in jurisprudence, legislation and political strategies -- will continue to affect the course of national affairs for years to come.

With reporting by Jerome Cramer/Washington and Janice C. Simpson/New York