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Strong words, emotion mark end of Supreme Court term

By Charles Bierbauer
CNN Senior Washington Correspondent

July 3, 2000
Web posted at: 3:29 p.m. EDT (1929 GMT)

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WASHINGTON (CNN)--The Supreme Court needed just 26 words to send Elian Gonzalez on his way home last week. The two essential words were "denied" and "denied."

But before the justices could send themselves packing for a summer of teaching, travel and vacation, they unleashed a torrent of words and emotion in deciding the social values cases -- abortion, gays, parochial school aid -- that cleared their docket for the term.

Abortion, Justice Stephen Breyer acknowledged, leads to "virtually irreconcilable points of view." Does it ever.

Breyer, delivering the court's verdict against a Nebraska ban on what opponents call "partial birth abortion," said it placed an unconstitutionally "undue burden upon a woman's right to make an abortion decision."

Justice Clarence Thomas, in 44 gruesomely detailed pages of Dissent -- "scissors...suction...skull contents" -- said the procedure was no less than "infanticide."

Thomas was almost calm in contrast to Justice Antonin Scalia's caustic distaste for the court's acceptance of a Colorado limit on protests at abortion clinics -- "Does the deck seem stacked? You bet."

"Much ink is spilled today," Justice John Paul Stevens noted, briefly, of the dissenters.

In fact, eight of the nine justices felt compelled to file either concurring or dissenting opinions on the abortion ban. Only Justice David Souter confined himself to simply signing on to the majority opinion.

This debate is not over. One day after holding the Nebraska ban unconstitutional, the Supreme Court let stand a lower court ruling that struck down a similar ban in Iowa and ordered appeals courts to take another look at such laws in effect in Illinois and Wisconsin.

Yet tucked into one paragraph of Justice Sandra Day O'Connor's concurring opinion on the Nebraska case -- Stenberg v. Carhart -- is the blueprint for statutes that might narrowly pass muster with this court.

"If Nebraska's statute limited its application to the D&X procedure (dilation and extraction) and included an exception for the life and health of the mother, the question presented would be quite different than the one we face today."

If only Justice O'Connor were persuaded to change her vote, the opinion would have gone the other way.

As a simple matter of scoring, conservatives lost on the abortion ban 5 to 4; lost on abortion protests 6 to 3; won on excluding gay Boy Scouts 5 to 4; won on aid to parochial schools 6 to 3. In other words, it's not a doctrinally conservative court even if it sometimes leans that way.

Justice O'Connor was the only member of the court in the majority in all four of the cases decided at the term's closing session.

What a difference one vote could make. And don't Al Gore and George W. Bush know it. Many political analysts say the ability to name the next several justices to the Supreme Court is the big prize for the next president.

Seated, from left: Associate Justices Antonin Scalia, John Paul Stevens, Chief Justice William H. Rehnquist, Associate Justices Sandra Day O'Connor and Anthony M. Kennedy. Standing, from left: Associate Justices Ruth Bader Ginsburg, David H. Souter, Clarence Thomas and Stephen G. Breyer

But wait a minute. For one thing, none of the justices is talking about retirement, at least not publicly. Not 80-year-old and chipper Stevens. Not 75-year-old Chief Justice William Rehnquist who might just like to get his 30-year pin in 2002. Not 70-year-old O'Connor. Not 67-year-old Ruth Bader Ginsburg. In spite of having cancer surgery just a month before the start of the term and chemotherapy during it, the slight, almost bird-like Ginsburg carried her weight judicially.

For another, presidents get no guarantees. George W. Bush need only ask his dad. David Souter votes consistently with the court's liberal wing, not the conservatives a Bush nominee might be expected to join.

Scalia and Thomas, the conservative tandem once stereotyped as inseparable, parted company on cases about grandparent rights, drug searches and scrambling the Playboy Channel on cable TV.

The court this term made its mark:

• It kept Roe v. Wade's right to abortion intact in the Nebraska ruling.

• It found the First Amendment rights of the Boy Scouts of America outweighed the discrimination claim of a gay scout leader.

• It refused to overrule its 34-year-old precedent granting a suspect the "right to remain silent" under police interrogation.

But the court also sent what a layman might consider confusing, if not conflicting, signals:

• Student-led prayer at Texas high school football games is an unconstitutional breach of the separation of church and state. Yet federal aid to buy computers and other equipment for parochial schools is not.

• The Boy Scouts' exclusion of gays is "freedom of association." But conservative students at the University of Wisconsin were not allowed to withhold their student fees allocated to support gay groups on campus.

• A Mississippi man won his age discrimination case against a private employer. But a Florida professor was not permitted to pursue an age discrimination case in federal court against his employer because it was the state.

The states won some and lost some as the justices wrestled with federalism. Congress won some and lost more as the justices showed frequent disdain for the legislators. The federal government won and lost as the court showed no favorites. There were fewer rulings -- 73 -- than the court has delivered in decades and more tight 5-4 decisions -- 20 -- than the court has seen in years.

And the cases are already piling up for the justices to consider when they return on the first Monday in October.

Charles Bierbauer, CNN's senior Washington correspondent, covers the U.S. Supreme Court and public policy issues. Send comments to Charles Bierbauer by writing to charles.lawcenter@cnn.com.

Supreme Court strikes down Nebraska anti-abortion law
June 28, 2000
High court allows Boy Scouts to exclude gays
June 28, 2000
Supreme Court says tax money can go to religious schools
June 28, 2000
Supreme Court reaffirms that police must warn criminal suspects of Miranda rights
June 26, 2000
Supreme Court says student-led prayer at high school football games violates First Amendment
June 19, 2000
High court reaffirms parents' rights in child-rearing decisions
June 5, 2000

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