Looking ahead to the new term.

In the past decade there has been a significant "downsizing" of the Supreme Court's docket. In the 1992-93 Term, the Court decided 110 cases; a decade earlier, in the 1982-83 Term, the Court decided 162 cases. In the 1991-92 Term, the Court decided 116 cases, compared with 167 cases a decade earlier during the 1981-82 Term.

Last year, in the 1993-94 Term, the Supreme Court handed down only 84 decisions--the smallest number since the 1950s. The Court has cut its docket in half over the past decade and by a third in just the past few years.

At the same time, the Court has issued fewer decisions that have attracted significant public attention or that have substantially changed the law in the past two years. Most of the important cases during the last Term were clarifications and elaborations on prior rulings, not dramatic departures in the law or the breaking of new ground.

For example, perhaps the three most significant constitutional cases were J.E.B. v. Alabama ex rel. TR, 114 S. Ct. 1419 (1994), which held that gender-based peremptory challenges are unconstitutional; Dolan v. City of Tigard, 114 S. Ct. 2309 (1994), which held that the Takings Clause allows local governments to place conditions on development only if the exaction is roughly proportionate to the government's interest; and Madsen v. Women's Health Center, Inc., 114 S. Ct. 2516 (1994), which upheld limits on protests outside abortion clinics.

These cases, however, were extensions of prior decisions and not major changes in the law. The Supreme Court previously had ruled in Batson v. Kentucky that race-based peremptory challenges are unconstitutional (476 U.S. 79 (1986)); J.E.B. applied that rule to gender.

In Nollan v. California Coastal Commission, the Court held that the Takings Clause requires that there be a nexus between a permit condition for development and the government's interest in regulating. (483 U.S. 825 (1987). Dolan articulated the test that courts should apply in implementing Nollan.

Countless cases have held that reasonable time, place, and manner restrictions are permissible in regulating speech in public forums. Madsen's most important holding was that a judicial order creating a buffer zone around an abortion clinic was a reasonable time, place, and manner restriction.

The Supreme Court Term that began Monday, October 3, is likely to continue the trend of a very slim docket. The Court is currently on a pace again to hear less than 100 cases. However, this Term, unlike those in the past couple of years, is likely to produce a number of major decisions. It has been many years since so many potentially significant cases appeared on the docket at the beginning of a Term. As discussed below, pending cases involve major social issues such as affirmative action, gun control, term limits, and welfare reform.

This Term also is significant in that it will provide the first opportunity to observe Justice Stephen Breyer. With the resignation of Justice Harry Blackmun, whom Breyer replaced, it also is the first time in recent memory that the Court is without a strong liberal voice. Since the 1930s, there have been liberal Justices such as William Douglas, Witham Brennan, Thurgood Marshall, and Blackmun. No one on the current Court occupies their place on the ideological spectrum.

More generally, this Term will provide a chance to observe a relatively new Court taking shape. Four Justices have joined in the past five years: Justice David Souter in 1990, Justice Clarence Thomas in 1991, Justice Ruth Bader Ginsburg in 1993, and Justice Breyer this year. The array of cases on the docket may well provide a strong indication of the likely direction and effects of Chief justice William Rehnquist's Court.

Value of Precedents

In watching the Court in the coming months, it will be worth paying dose attention to three major questions. First, how much is the current Court committed to following precedent and how willing is it to overrule prior decisions?

In 1992, to the surprise of many, in Planned Parenthood of Southern Pennsylvania v. Casey, the Court reaffirmed constitutional protection for abortion rights. (112 S. Ct. 2791.) The joint opinion by Justices Sandra Day O'Connor, Anthony Kennedy, and Souter emphasized stare decisis, the need to adhere to precedents. A key issue in assessing the impact of the Rehnquist Court will be whether this adherence to precedent is followed outside the abortion context and across the Court's docket.

A particularly important case in this regard is Adarand Constructors, Inc. v. Pena (16 F.3d 1537 (10th Cir. 1994), cert. granted, 1994 WL 210043). This case raised the question of the proper standard for reviewing the constitutionality of federal programs that provide benefits to minority-owned businesses. In City of Richmond v. Croson, the Court held that strict scrutiny should be used in evaluating state and local government minority set-aside programs. (488 U.S. 469 (1989).) But a year later, in Metro Broadcasting, Inc. v. FCC, the Court held that only intermediate scrutiny is to be used in evaluating congressionally approved affirmative action plans. (497 U.S. 547 (1990).

Metro Broadcasting was a 5-4 decision, with Justices Brennan, Byron White, Marshall, Blackmun, and John Paul Stevens comprising the majority. Four of these Justices are no longer on the Court, but all four dissenters--Rehnquist, O'Connor, Antonin Scalia, and Kenned--remain. Justice Thomas would seem to provide a fifth vote to overrule Metro Broadcasting. Perhaps, though, some of these Justices might proclaim adherence to stare decisis and refuse to overturn a four-year-old decision. Adarand is thus important both for the law on affirmative action and for a clue as to the current Court's views about precedent.

In the Hot Seat

A second major question is: How will the Court handle controversial political and social issues--how willing is the Court to buck strong public opinion in its constitutional decision making? A number of cases on the docket involve particularly hot topics.

For example, in U.S. Term Limits, Inc. v. Hill, the Court will consider whether states may impose term limits for members of Congress. (872 S.W.2d 349 (Ark.), cert. granted sub nom. U. S. Term Limits, Inc. v. Thorton, 114 S. Ct. 2703 (1994).) In United States v. X-citement Video, Inc., the Court will consider whether the federal child pornography law is unconstitutional because of its failure to expressly require proof that the defendant knew the performers were under age 18. (982 F.2d 1285 (9th Cir. 1992), cert. granted, 114 S. Ct. 1186 (1994).

In Green v. Anderson, the Court will consider whether a state may limit new residents' Aid to Families with Dependent Children benefits to the level of benefits received or receivable in the previous state of residence for a period of one year. (26 F.3d 95 (9th Cir.), cert. granted, 1994 WL 419014.) Since many states are struggling to limit their welfare costs, Anderson will provide the Court with the opportunity to reconsider the right to travel and the actions a state can take in trying to inhibit migration into the state.

Right or Center?

A third important question about the Rehnquist Court is whether it is likely to be a more restrained Court, generally deferring to government, or whether it will be a more activist Court, advancing the conservative ideological agenda.

Perhaps the most significant pending case is United States v. Lopez, in which the Court will consider the scope of congressional power under the Commerce Clause. The issue in Lopez is whether this clause empowers Congress to make possessing a firearm within 1,000 feet of a school a federal offense. (2 F.3d 1342 (5th Cir. 1993), cert. granted, 114 S. Ct. 1536 (1994).

Since 1937, the Supreme Court never has invalidated a federal law as being beyond the scope of Congress's commerce power. Before 1937, the Court aggressively protected states' rights by narrowly circumscribing the reach of the Commerce Clause and by using the Tenth Amendment as a limit on congressional authority.

For example, in a series of cases, the Court held that Congress could regulate only commerce itself and not mining, manufacturing, or production. (See, e.g., United States v. E. C. Knight Co., 15 6 U.S. 1 (1895).) Also, the Court held that the Tenth Amendment reserved a zone of activities for exclusive state control and invalidated numerous federal laws, such as those prohibiting the use of child labor, as violating principles of federalism. (See, e.g., Hammer v. Dagenbart, 247 U.S. 251 (1918).

In 1937, the Court dramatically shifted course and abandoned these principles. From 1937 until 1992, only one case found that a federal law violated the Tenth Amendment--and that decision, National League of Cities v. Usery, (426 U.S. 833 (1976)), was later expressly overruled in Garcia v. San Antonio Metropolitan Transit Authority. (469 U.S. 528 (1985).

Criticism from the Right

Conservatives, however, continually have criticized this growth in federal power. In 1992, in New York v. United States, the Supreme Court resurrected the Tenth Amendment as a protection of state sovereignty. (112 S. Ct. 2408.

In an opinion written by Justice O'Connor, the Court declared unconstitutional a federal law that required states to safely dispose of nuclear wastes by 1996. The Court held that Congress violates the Tenth Amendment if it compels a state to enact its own legislation or instigate its own regulatory action. Will the Court also protect states by limiting the scope of Congress's commerce power?

Lopez, this Term, may provide an important answer. Congress, without any articulated findings regarding a link to interstate commerce, prohibited the possession of a firearm within 1,000 feet of a school. The Fifth Circuit declared this unconstitutional as exceeding the scope of congressional powers. If the Supreme Court affirms, countless federal laws are potentially vulnerable. A judicially enforced limit on the scope of the commerce power would be a radical change in the law and, thus, Lopez will be a crucial case in assessing the character of the Rehnquist Court and its likely direction.

Will Justices Thomas and Scalia be increasingly alone as the far right wing of the Court? Will Justice Kennedy continue his apparent move to the center? Will Justice Souter remain a strong independent voice and perhaps even become the most liberal member of the Court? What will be the effect of the two newest Justices, Ginsburg and Breyer?

The important and controversial cases on this Term's docket may go a long way toward answering these questions.