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Election could change direction of court

Published Oct. 12, 2005

The Supreme Court that begins a new term today is the court Ronald Reagan and George Bush built. But it is not the court they envisioned.

What the two presidents have wrought after five new appointees and the promotion of a chief justice is a splintered group of justices whose voting patterns for the most part defy predictions.

Last term a majority spurned the Bush administration on matters closest to the GOP heart: abortion and school prayer. The Republican platform committee was disgusted enough in August to delete the usual praise for GOP-appointed justices.

But the book is not closed on what is still the most conservative court in more than three decades.

This upcoming term could be the last chance for a court with seven conservative justices, and two justices who are labeled liberal only by comparison, to make major changes in law. While the Reagan-Bush legacy will endure as long as their justices do, a victory by Democratic presidential nominee Bill Clinton this fall would end 12 years of conservative appointments to the court, and the next president could see several resignations during his four-year term.

Cases already accepted for this term will give justices a chance to show how they view the rights of women seeking abortions, when access to clinics is blocked by protesters, and to weigh the religious liberties of a church outside the mainstream. This term also could test just how far the court will go in cutting back on state prisoners' ability to challenge the constitutionality of their convictions.

But perhaps the overriding question is whether the newly formed alliance of Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter will hold.

Those three justices were responsible for preventing a reversal of the court's long-held positions on abortion, school prayer and, in one key case, prisoners' rights. They staked out a moderate conservatism, in response to pressure from the right, particularly from Chief Justice William H. Rehnquist and Justice Antonin Scalia, and the void on the left, caused by the 1990 and 1991 retirements of William J. Brennan Jr. and Thurgood Marshall.

Although O'Connor, Kennedy and Souter might be judicially as conservative as the others, they resist the speed with which Scalia and Rehnquist particularly would overturn precedents decided during the 1960s and 1970s, when more liberal justices were in control.