This week, the court begins its 1995-96 term, potentially its most important since abortion and Roe v. Wade continually rolled the docket in recent years. Over the next nine months, the justices will take on gay rights, race-based voting districts, punitive damages, as well as the nascent battle between states’ rights and federal power. Judge Lance Ito and a sensational murder trial in Los Angeles may get the headlines, but it’s what the justices say in a hundred-or-so cases every year that really shapes American law. The gay-rights case, to be argued Oct. 10, gives the court its first chance since 1986 to rule on the constitutional rights of homosexuals. The issue: Colorado’s Amendment 2, passed by voters in 1992, which prohibited the state government or municipalities from passing special protections for gays. The justices have to decide if that kind of exclusion denies gays “equal protection.” Gay-rights groups hope for a victory as significant as Brown v. Board of Education was to blacks in 1954.
Even so, the case won’t be as significant as others that come before the court. The new term likely marks the beginning of a judicial period when single issues like abortion or gay rights no longer will dominate. Instead, for the first time since the New Deal era, the justices will have to confront just how serious they are about restructuring the federal regime and well-settled political thought. In United States v. Lopez, the key case last term, a 5-4 court ruled that Congress lacked the power to make a federal crime out of gun possession near a school. Chief Justice William Rehnquist wrote for a conservative majority that included Justices Clarence Thomas, Antonin Scalia, Anthony Kennedy and Sandra Day O’Connor.
Momentous change: Shocking even most conservatives, Lopez was the first time in 60 years that the court threw out a federal law as exceeding congressional power. Some scholars have argued the decision is anomalous-an instance of the court telling lawmakers to spell out their policies better. But other court observers herald Lopez as a momentous change that will shift power back to the states. Already lower federal courts have overturned federal child-recovery and arson statutes.
Whether the high court upholds these cutbacks depends on the ability of the revolutionary troika–Rehnquist, Thomas and Scalia–to hold on to the votes of Kennedy and O’Connor, who are what remains of a moderate center on the court. As much as Rehnquist was the spokesman for Lopez, it is Thomas who best represents the boldness of the new court. Since he joined the court in 1991, Thomas has been written off as Scalia’s intellectual caddie.
But after last year, Thomas can lay claim to being the most aggressive conservative justice since the 1950s. His dissenting opinion in the term-limits case–where the court fell one vote short of allowing states to limit congressional terms–would have turned the federal system on its head. States would have become the real sovereigns in the constitutional framework. In the redistricting and affirmative-action cases, Thomas spoke of a colorblind society in a way that would seem to invalidate any law taking race into account.
President Clinton’s two justices–Stephen Breyer and Ruth Bader Ginsburg–are often irrelevant to the new court, as are the other two moderate-liberals, David Sourer and John Paul Stevens. That’s not to say, though, that the ideological lines at the court are permanently drawn. Where so many of the important cases have gone 5-4, one or two changes in the juridical lineup could shift the balance of power. Rehnquist, bad back and all, is the most likely to quit; Stevens, on the liberal side, is the oldest at 75. That could make the ‘96 presidential campaign critical for the court. And we don’t even know if Colin Powell has any ambitious friends with law degrees.
