THE SOUL OF A NEW MAJORITY

By Richard Lacayo

THE DEATH OF FORMER CHIEF JUSTICE Warren Burger was a reminder of how long the Supreme Court has been under watch for signs that the rule of its liberal wing was over: roughly, it would seem, from the day Richard Nixon named Burger to the court in 1969. For the next two decades, the liberals managed to score victories in the face of what should have been superior numbers. But even if they have lost ground slowly, they have lost it all the same. Last week as Burger was laid to rest, so too was another good bit of the Earl Warren legacy. When in a single day the court can rule against a black-majority voting district and in favor of public funding for a Christian student magazine--and for good measure approve a cross erected by the Ku Klux Klan in a public park--it can't be much fun anymore to be a liberal Justice.

All that was merely the finale of a term in which the court's conservatives tightened the screws on affirmative action, said "enough" to a famous effort to achieve school desegregation, approved suspicionless drug testing for high school athletes and forbade Congress to extend power over the states. What made all the difference is that Sandra Day O'Connor and Anthony Kennedy, two perennial swing votes, swung regularly to the right. There they met up with Chief Justice William Rehnquist, Antonin Scalia and Clarence Thomas, the slash-and-burn conservatives. That the term also saw the further consolidation of a fairly reliable four-vote liberal block--John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer--is cold comfort to those four and their supporters. Unless they can attract O'Connor or Kennedy to their side more often, the left wing of the court is in danger of becoming a vestigial organ, visible but pointless.

Among last week's decisions, it was Miller v. Johnson, in which the court struck down a Georgia redistricting plan, that will have the greatest immediate impact. To satisfy the Voting Rights Act of 1965, several states have created congressional districts in which blacks or Hispanics constitute a majority. As a result, in the past decade the number of minority representatives in Congress has nearly doubled.

With prodding from the Justice Department, Georgia created three such "majority minority" districts, including one now represented by Cynthia McKinney, a black Democrat. In a suit brought by five white voters, the court ruled that because race was the "predominant'' consideration in drawing McKinney's district, it violated their rights under the Equal Protection Clause of the 14th Amendment. "Racial classifications with respect to voting,'' Kennedy warned, "threaten to carry us further from the goal of a political system in which race no longer matters.''

The decision still allows race to be taken into account in the creation of voting districts. In a separate one-paragraph order, the court even upheld California's 1992 redistricting plan, which had created nine black and Hispanic majority districts. But as they did with affirmative action, the majority ruled that government could take race into account only through "narrowly tailored" remedies.

What remains to be seen is how states can consider race, but not too much. Though the ruling applied only to McKinney's Georgia district, it is still sure to encourage legal challenges in a dozen states, mostly in the South. Already the court has agreed to hear related cases from Texas and North Carolina. Civil rights activists and black lawmakers are promising to fight back. "We're not going to stand back and let five people who are out of touch with reality determine our future," promised New Jersey Representative Donald Payne, chairman of a 40-member Congressional Black Caucus that could soon be much smaller. "We're going to initiate massive voter-registration drives and voter-education sessions."

On the same day, the same five Justices also handed down a sizable departure from the court's standing doctrine on the separation of church and state. The majority ruled that the University of Virginia violated free-speech rights when it withheld financial support from the Christian student magazine Wide Awake while subsidizing other student publications. It was the first time the court had ever approved government funding for a religious activity. "This case has the potential of going a long way toward overturning the court's position against aid to parochial schools and school vouchers," says Jesse Choper, a law professor at the University of California, Berkeley.

Showing they might still constitute a force to be reckoned with, the liberals brought Kennedy and O'Connor over to their side for a 6-to-3 ruling last week. In a setback for the timber interests that brought the suit, the court ruled that the U.S. Fish and Wildlife Service had not exceeded the intent of the Endangered Species Act of 1973 when it forbade modification or destruction of wildlife habitats on private land. With Congress in the process of rewriting the Endangered Species Act, even that could be a short-lived victory.

While the decisions involving race and religion made the biggest headlines, the term's most significant case may yet turn out to be U.S. v. Alfonso Lopez Jr. It overturned a federal law forbidding firearms within 1,000 feet of a school, yet it was not the impact on gun control that gave Lopez its long-lasting potential. At real issue was the reach of federal power under the provision of the Constitution that allows Congress to regulate commerce between the states.

Since the Depression, Congress has used the so-called Commerce Clause to extend its authority into ever more areas once reserved to the states, including not only such matters as shipping rates and wages but also less clearly "economic" concerns like racial discrimination. The Commerce Clause, for instance, is the constitutional basis for the Civil Rights Act of 1964, which forbids discrimination in public accommodations and employment. Much of the vast 20th century expansion of federal power over the states can be traced to it.

After almost 60 years on the sidelines, in Lopez the court announced its willingness to get back into the business of drawing boundaries between federal and state authority. Brady Law restrictions on handgun sales, motorcycle-helmet requirements, the "motor-voter" program that requires states to let people register to vote when applying for a driver's license--after Lopez, all those could now be accused of resting on a thinly stretched interpretation of how the activity in question affects the national economy. But the ruling is no clear gift to Republicans. Federal crime-control measures that forbid everything from domestic violence to carjacking could also be vulnerable.

Though the conservatives prevailed this term largely because of O'Connor and Kennedy, both Justices still drift from time to time to the other side. It was Kennedy who provided the majority in the term-limits case, in which the court decided that states could not limit the terms of members of Congress because the framers of the Constitution established the exclusive qualifications. And O'Connor wrote the strong dissent when the court ruled that public high schools can require drug tests for student athletes without prior suspicion of drug use. Moreover, Kennedy and O'Connor often wrote separate opinions this term to distance themselves from the three other conservatives with whom they voted. In the University of Virginia ruling, for instance, O'Connor made clear her preference for dealing with church-state entanglements on a case-by-case basis, rather than by enunciating a broad new principle that might open the way to more official support for religion.

By contrast, this was the year in which Thomas boldly marked off ground at the furthest-right end of the bench, so far that even the two-fisted Scalia generally did not join him there. Yet sometimes he could bring along part of the court. In the term-limits case, his separate opinion reflected the conservative fascination with the 10th Amendment, which reserves to the states all power not specifically delegated to the Federal Government. Accordingly, Thomas suggested that the U.S. government exists only to the extent the states permit it. Rehnquist, O'Connor and Scalia signed on. How much further will the conservatives go? Their rulings on race, the commerce clause and church-state separation are open invitations to more litigation--and more struggles for that fifth vote. As chief guidance officer of the liberal wing, William Brennan had a famous dictum: "Five votes can do anything around here.'' Year after year, he bundled together 5-to-4 liberal majorities. In January a frail-looking Brennan sat on the sidelines to hear oral arguments in Adarand, this term's affirmative-action case. When a 5-to-4 ruling came down, another conservative victory, it was hard not to wonder whether his words had come back to haunt him.

--Reported by Andrea Sachs/New York

With reporting by Andrea Sachs/New York