A Surprising Display Of Centrist Thinking

For liberals, there has been little to cheer about the current Supreme Court term since Clarence Thomas took his place on the bench in November. Especially in the area of criminal procedure and individual rights, the Rehnquist court has been predictably conservative in its approach. But last week, as the term entered its final days, the high court issued a quartet of decisions that showed a distinct pro-First Amendment, pro-civil liberties streak that surprised many observers. What was clear was that Antonin Scalia and Thomas, the right wing of the court, were far from controlling the agenda. Instead, a group of Justices -- Sandra Day O'Connor, David Souter and Anthony Kennedy -- combined to demonstrate the existence of a new centrist core. "These cases may indicate the emergence of a stronger, more open-minded group in the middle" than might have been expected, said Vincent Blasi, a liberal law professor at Columbia. "It's easy to take potshots from the ideological extreme, but when your judgments actually determine the future of the Constitution, it tends to make you more responsible."

While a much awaited decision about a restrictive Pennsylvania abortion law is still on the calendar for the court's last day, probably June 29, significant cases decided last week included:

FREE SPEECH

Three years ago, the Supreme Court held in a highly controversial 5-to-4 decision that burning an American flag is protected free speech under the First Amendment. Last week the court found that cross burning is also protected by the First Amendment. A Minnesota teenager, Robert A. Viktora, burned a cross on the front lawn of a black family in St. Paul and was charged under a city ordinance that banned any action "which one knows . . . arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." Scalia called the ordinance unconstitutional on its face "in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." He was quick to add, "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal" -- such as trespass laws -- "to prevent such behavior without adding the First Amendment to the fire."

All nine Justices agreed with Scalia's view that the ordinance ran afoul of the First Amendment. But four Justices -- O'Connor, Byron White, John Paul Stevens and Harry Blackmun -- took a different approach, attempting to find a way of accommodating so-called hate-crime laws that are drawn more narrowly. Left in doubt were hundreds of campus speech codes and bias-crime statutes throughout the country aimed at racist and sexist conduct.

The court held in another case that airports must allow political and religious organizations to distribute literature in terminals, but it added that such groups may be barred from soliciting donations.

SCHOOL PRAYER

When Deborah Weisman graduated from a public middle school in Providence, R.I., in 1989, school officials invited a rabbi to deliver an invocation and benediction at the commencement. Last week, in a rebuff to the Bush Administration, the high court found by a 5-to-4 ruling that the school's action was a violation of the Establishment Clause of the First Amendment. ! Writing for the majority, Justice Kennedy held that "the Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation." In doing so, the majority refused to overrule the 1971 Lemon test, which the Administration had urged the Justices to jettison. For a government practice to pass constitutional muster, Lemon requires that it have a secular purpose, that it neither advance nor inhibit religion as its primary purpose and that it avoid excessive "entanglement" of government and religion.

The court took pains to note that its decision applies only to public elementary and secondary school activities; other decisions by the court have permitted prayers before the opening of state legislatures and Congress. Nevertheless, the decision drew a bitter dissent from Justice Scalia, joined by Thomas, Rehnquist and White. "The court -- with nary a mention that it is doing so -- lays waste a tradition that is as old as public school graduation ceremonies themselves," wrote Scalia.

TOBACCO-COMPANY LIABILITY

By the time the Supreme Court announced it would decide whether the tobacco industry could be sued by smokers for concealing facts or lying about the health dangers of smoking, the industry had attempted to hire Laurence Tribe, a prominent Harvard Law School professor, as its lawyer. Tribe chose to represent, pro bono, the other side -- the family of Rose Cipollone, a Little Ferry, N.J., woman who died of lung cancer after smoking for 42 years. By a surprising 7-to-2 vote, the court sided with Tribe, rejecting arguments that lawsuits in state courts were barred by federal legislation requiring warnings on cigarette packages. Only Justices Scalia and Thomas dissented. Tobacco spokesmen applauded the ruling because litigants face technical hurdles, but the decision was seen as a major defeat for the industry; although cigarette stock prices remained steady, manufacturers will be hit with a flood of lawsuits.

COLLEGE DESEGREGATION

In its first ruling on racial discrimination in higher education, the court ruled that Mississippi has perpetuated segregation at its state-run colleges and universities, even though whites and blacks can attend any school they choose. By an 8-to-1 vote, with Scalia dissenting, the court said Mississippi has not done enough to overcome its history of legally enforced segregation because most black students still attend inferior, predominantly black ^ schools. (See related story on page 24.)