Looking back to the future.

The Supreme Court began its new Term on the first Monday in October. The most dramatic difference from last year, of course, is the retirement of Justice Byron White and the addition of Justice Ruth Bader Ginsburg. Justice Ginsburg is the second woman ever to sit on the Court, and she is the sixth fernish Justice. At age 60, she is older than most justices were when they began their service on the Court.

What can be expected from the Supreme Court this Term, and what difference is Justice Ginsburg likely to make? Three predictions can be made with some certainly based on the Court's recent decisions and Justice Ginsburg's background. First, the Court will decide substantially fewer cases than it has recently. Second, the Court is likely to produce few majority opinions on important constitutional questions. Third, the opinions overall will probably remain conservative.

A significant trend in recent years has been the substantial decrease in the number of cases decided by the Supreme Court each Term. Last Term, the Court decided 110 cases.(1) In contrast, a decade ago in the 1982-83 Term, the Court decided 162 cases.(2) In the 1991-92 Term, it decided 116 cases,(3) compared with 167 cases a decade earlier during the 1981-82 Term.(4)

There is every reason to believe that the trend will continue this year. Before the Court adjourned in June, it had granted review in just 46 cases. Generally, about half the docket is set before the Court resumes business in October, so this year appears to be exceptionally light for the Court. In fact, the docket was so sparse that on September 28--six days before the Court officially resumed business--the Court took the unprecedented step of granting review in six cases so it would have enough cases to hear on its January calendar. What accounts for the decrease? Many factors may be partially responsible. One may be increasing ideological agreement between the Supreme Court and the lower federal courts. With both the Supreme Court and the lower federal courts dominated by judges appointed by former Presidents Ronald Reagan and George Bush, there are likely fewer instances in which the Court disagrees with the lower courts.

Also, the type of cases where Supreme Court review is sought has changed somewhat--attorneys bring fewer cases in hope of a liberal constitutional interpretation. In many instances, these lawyers perceive little chance of succeeding before the conservative Court, and they worry that an adverse Supreme Court decision could make "bad" law. In fact, many of the Court's civil liberties and civil rights cases are appeals brought by governments defeated at the lower court levels.

The decreased caseload may also indicate that in some areas we are nearing the end of a constitutional revolution. Last Term, only one major decision concerned the Fourth Amendment, Minnesota v. Dickerson, which recognized a plain feel" exception to the Fourth Amendment's warrant requirement.(5) So far, no Fourth Amendment cases are on the 1993-94 docket. For several years, the Court decided numerous cases that substantially weakened Fourth Amendment constitutional protections. There is just less left to do.

A similar pattern has emerged in another area. For several years in a row, the Court decided major cases concerning the scope of federal habeas corpus review. I predict we will see fewer habeas decisions because the Court largely has accomplished its mission of greatly narrowing the availability of habeas corpus relief.

The reduction in decisions may also be a result of the Court's increased prolixity. Although the Court is deciding fewer cases, it is writing more pages. For example, the Supreme Court Reporter for the 1987-88 Term contained 2,922 pages for 142 decisions; the Reporter for the 1992-93 Term, 3,070 pages for 110 cases. Perhaps this reflects a choice to emphasize depth in analysis over quantity of decisions. Perhaps, too, it reflects an increased tendency of the Justices to write separate opinions.

Finally, the decreased caseload is probably due to the Court's recent high turnover rate. In the last five years, four new justices have joined the Court. As the Justices gain experience working together, the caseload might increase.

Fewer decisions from the Court mean more unresolved constitutional and statutory issues. More conflicts among the circuits will remain. This might create pressure to reconsider proposals to establish an intermediate national court of appeals to resolve conflicts among the circuits.

A Splintered Court

The following passage, found in the syllabus of an important case decided last Term, is typical of those produced by the current Court: Kennedy, J., delivered the opinion of the Court with respect to Parts I, III, and IV, in which Rehnquist, C.J., and White, Stevens, Scalia, Souter, and Thomas, JJ., joined, the opinion of the Court with respect to Part 11-B, in which Rehnquist C.J., and White, Stevens, Scalia, and Thomas, JJ., joined, the opinion of the Court with respect to Parts II-A-1 and II-A-3, in which Rehnquist, C.J., and Stevens, Scalia, and Thomas, JJ., joined, and an opinion with respect to Part II-A-2, in which Stevens, J., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Rehnquist, C.J., joined. Souter, J., filed an opinion concurring in part and concurring in the judgment. Blackmun, J., filed an opinion concurring in the judgment, in which O'Connor, J., joined.(6) And this was a decision that had a unanimous result!

Splintered opinions like this one are not at an unusual from the current Court, which seems to be divided into "camps." A conservative wing comprises Chief Justice William Rehnquist and justices Antonin Scalia and Clarence Thomas. Justices Scalia and Thomas agreed in 91 percent of the cases decided during last Term--the highest agreement rate among any two justices.(7)

Justices Anthony Kennedy and Sandra Day O'Connor make up the moderate conservative wing of the Court. Although Justice Kennedy tends to vote with the more liberal Justices in freedom of speech cases and Justice O'Connor does the same in cases that are related to women's rights, both usually vote with the most conservative bloc. For instance, last Term, Justice Kennedy voted with Chief Justice Rehnquist in 90 percent of the cases.(8) Justice O'Connor voted with justice Thomas in 85 the cases.(9)

Justices Harry Blackmun, David Souter, and John Paul Stevens make up the moderate liberal wing of the Court. None is as liberal as William Brennan, William Douglas, or Thurgood Marshall. But they are clearly the most progressive part of the current bench. Last Term, Justice Souter wrote key dissenting opinions in a number of cases restricting the scope of individual liberties and civil rights.(10) Justices Blackmun and Stevens agreed in 84 percent of the cases decided.(11) In contrast, in the 1991-92 Tenn, Justice Blackmun voted with Justice Thomas in only 42 percent of the cases, and Justice Stevens agreed with justice Thomas in just 41 percent of the decisions.(12)

What is the effect of a splintered Court? There will be more decisions where the Court does not have a majority opinion. For example, last Term, the Court decided an important case concerning whether large punitive damage awards violate due process--TXO Production Corp. v. Alliance Resources Corp.--but there was no majority opinion.(13) The result is a lack of guidance to lower courts and attorneys. [For an analysis of this decision, see "TXO and the Future of Punitive Damages" on page 53.!

Also, the deep divisions there will be more narrowly crafted opinions, focusing only on the points on which a majority could agree. For instance, in Austin v. United States, the Supreme Court held that certain civil forfeiture penalties could be challenged as excessive fines in violation of the Eighth Amendment. But the Court offered no guidance on what would be considered excessive.(14) Lawyers and lower courts are left to guess as to the standards to be applied.

Perhaps Justice Ginsburg can help heal the divisions on the Court. As a former colleague and friend of Justice Scalia, and as a former American Civil Liberties Union lawyer with impeccable liberal credentials, she might be the perfect person to help the Justices lower their voices and find more common ground.

A Conservative Court

Overall, the Rehnquist Court has proven to be quite conservative. Last Term, there were six conservative Justices--Chief Justice Rehnquist and Justices Kennedy, O'Connor, Scalia, Thomas, and White. In almost every major case, at least five of them voted together in a manner that would be regarded as a conservative victory. For example, the Court approved additional aid to parochial schools,(15) allowed the use of a federal forfeiture statute to confiscate $9 million from a person convicted of selling seven obscene items,(16) and made it more difficult for victims of employment discrimination to prevail under Tide VII.(17)

Even assuming that Justice Ginsburg will be one of the most liberal members of the Court, there still will be five solid conservative votes. Nonetheless, there likely will be several 5-4 cases where she will vote differently from how Justice White would have decided. For example, the cases concerning aid to parochial schools and civil forfeiture were 5-4 decisions, with Justice White in the majority. Justice Ginsburg might very well have voted with those who dissented.

Justice Ginsburg likely will have an immediate effect in three areas. The first one involves the Establishment Clause. Lemon v. Kurtzman probably will not be overruled and will continue to be the test used in Establishment Clause cases.(18)

In 1989, in County of Allegheny v. ACLU, four Justices--Justice Kennedy in an opinion joined by Chief Justice Rehnquist and Justices White and Scalia --strongly criticized the Lemon test and urged the Court to allow more government involvement in religion.(19) In 1992, in Lee v. Weisman, four Justices expressly called for overruling Lemon: Justice Scalia in an opinion joined by Chief Justice Rehnquist and Justices Thomas and White.(20)

Thus, based on Justice Kennedy's dissent in Allegheny and the four dissenters in Lee, it appeared that there were five votes to discard the Lemon test. But Justice Ginsburg, at her confirmation hearings, expressed support for the test and for keeping a strong wall separating church and state.

Second, Justice Ginsburg will make an important difference in abortion cases. In 1992, in Planned Parenthood v. Casey, the Supreme Court, by a 5-4 margin, reaffirmed that the Constitution protects the right to abortion.(21) Justice Ginsburg will be a sixth vote to retain this constitutional protection. Also, in light of her prior writings and her confirmation testimony, she probably will be much less willing to tolerate state laws limiting access to abortion.

One abortion-related case is on the docket this Term. In National Organization of Women v. Scheidler, the Court will decide whether the federal Racketeering Influenced and Corrupt Organizations statute can be used to prevent antiabortion groups like Operation Rescue from blocking access to abortion clinics.(22)

Finally, all expect that justice Ginsburg will be a solid vote and strong voice against gender discrimination. As an attorney and a law professor, she made her name fighting discrimination. This Term, important cases involving gender-related issues are on the docket. For example, in J.E.B. v. TB., the Supreme Court will decide whether discriminatory use of peremptory challenges based on gender violates the Equal Protection Clause.(23) In Harris v. Forklift Systems, Inc., the Court will decide what plaintiffs must prove to recover under Title VII in sexual harassment cases.(24)

The Docket

Many cases on the docket raise interesting issues. Does the Civil Rights Act of 1991 apply to cases pending at the time it was adopted?(25) What is the nature of First Amendment protection for cable television; specifically, does the federal law requiring cable companies to carry local broadcast stations violate the First Amendment?(26) Is the pattern jury instruction in criminal cases, which says that jurors must find to a "moral certainty" that the defendant is guilty, constitutional?(27)

All will be decided before the Court adjourns in late June 1994. The arrival of Justice Ruth Bader Ginsburg is likely to affect the outcomes in some of these cases.

Notes

(1) Supreme Court Review, NAT'L L.J., Aug. 23, 1993, at S2. (2) The Supreme Court, 1982 Term--The Statistics, 97 HARV. L. REV. 295 (1983). (3) The Supreme Court, 1991 Term--The Statistics, 106 HARV. L. REV. 378 (1992). (4) The Supreme Court, 1981 Term--The Statistics, 96 HARV. L. REV. 304 (1982). (5) 113 S. Ct. 2130 (1993). (6) Church of Lukumi Babalu Aye v. City of Hialeah, 113 S. Ct. 2217, 2221 (1993). (7) Supreme Court Review, supra note 1, at S1. (8) Id. (9) Id. (10) See, e.g., Shaw v. Reno, 113 S. Ct. 2816, 2845 (1993) (dissenting from a decision finding that the use of race in drawing election districts must meet strict scrutiny test); Bray v. Alexandria Women's Center, 113 S. Ct. 753 (1992) (dissenting from a decision holding that Operation Rescue could not be sued, pursuant to 42 U.S.C. sections!1985(3), as engaged in a conspiracy to interfere with civil rights). (11) Supffm Court Review, supra note 1, at SI. (12) The Supreme Court, 1991 Term--The Statistics, supra note 3, at 379. (13) 113 S. Ct. 2711 (1993). (14) 113 S. Ct. 2801 (1993). (15) Zobrest v. Catalina Foothills Sch. Dist., 113 S. Ct. 2462 (1993) (approving the use of public school funds to provide sign-language interpreters for hearing-impaired students in sectarian schools). (16) Alexander v. United States, 113 S. Ct. 2766 (1993). (17) St. Mary's Honor Soc'y v. Hicks, 113 S. Ct. 2742 (1993) (holding that a plaintiff is not entitled prevail as a matter of law upon proving that the defense was pretextual). (18) 403 U.S. 602 (1971). (19) 492 U.S. 573, 657 (1989) (Kennedy, J., concurring in part and dissenting in part). (20) 112 S. Ct. 2649, 2678 (1992) (Scalia, J., dissenting). (21) 112 S. Ct. 2791 (1992). (22) 61 U.S.L.W. 3834 (U.S. June 14,1993) (No. 92-780). (23) 113 S. Ct. 2330 (1993). (24) 113 S. Ct. 1382 (1993). (25) Landsgraf v. USI Film Prods., 113 S. Ct. 1250 (1993). (26) Turner Broadcasting v. F.C.C., 113 S. Ct. 1806 (1993) (denying injunctivc relief pending a full hearing on First Amendment issue). (27) Sandoval v. California, 62 U.S.L.W. 3241 (U.S. Sept. 28, 1993) (No. 92-9049); Victor v. Nebraska, 62 U.S.LW 3241 (U.S. Sept. 28, 1993) (92-8894).