Supreme tug-of-war.

With five Supreme Court justices nearing retirement, either Al Gore or George W. Bush will have the chance to set the court's direction for decades

As he prepared for oral arguments last spring in Boy Scouts of America v. Dale before the U.S. Supreme Court, Evan Wolfson knew the deck was stacked against him. To win a majority on the closely divided court, the gay rights advocate understood that he would have to convince at least one justice appointed by Republican president Ronald Reagan that the Scouts' policy of barring gay members was unconstitutional. Chief Justice William Rehnquist and Antonin Scalia, determined gay rights foes, were certain to vote against his client. That left Anthony Kennedy and Sandra Day O'Connor, considered slightly more moderate.

Even though Scalia--who at one point during arguments compared gays to "ax murderers"--repeatedly interrupted him when he directed his arguments to Kennedy and O'Connor, Wolfson felt he received a fair hearing. But when the decision was handed down in June, O'Connor and Kennedy had joined Rehnquist, Scalia, and Bush appointee Clarence Thomas in ruling that the Scouts had a legal right to determine their own membership criteria.

"I thought that the decision was basically a brush-off," says Wolfson, a senior staff attorney for Lambda Legal Defense and Education Fund, which represented James Dale, the plaintiff in the case. "The reason it was not a sound legal ruling is that the Reagan justices simply look for any way they can find to treat gay men and lesbians as second-class citizens. Because of the political tilt of the court, I felt that it was hard to get the majority to stand up for gay kids in the Scouts."

Wolfson's experience underscores the importance of the ideological composition of the high court. With as many as five justices, including John Paul Stevens--the 80-year-old author of a stinging dissent in the Dale case--considering retirement, the next president could shape the political direction of the court well into the century. With the court closely divided on many gay cases, the November presidential election could determine for the foreseeable future the fate of gay rights from the military to marriage. And it's not just the high court that's at stake: The next president will wield considerable influence on the lower federal courts, where many judges are nearing retirement.

"As I look at the balance of the court, I see that two of the three that make up the antigay voting bloc--Scalia, Thomas, and Rehnquist--are [among] the youngest members," says Matt Coles, director of the Lesbian and Gay Rights Project of the American Civil Liberties Union. "The most pro-gay member, Stevens, is the oldest. Already, folks who litigate gay rights cases make sure most cases never get to the Supreme Court for fear of losing. Any defection from the gay rights bloc could be disastrous."

A report issued last May by People for the American Way, a lobbying group, contends that a court led by Scalia and Thomas "would radically rewrite our nation's fundamental definition of justice."

"The United States Supreme Court is just one or two new justices away from curtailing or abolishing constitutional and civil rights that millions of Americans take for granted," says Ralph G. Neas, the group's president. "Two or three new justices in the mold of Antonin Scalia and Clarence Thomas would lead to a reversal of decades of Supreme Court precedent in civil rights, reproductive rights, privacy, separation of church and state, worker and consumer rights, environmental protection, campaign finance reform, and more."

Both of the major presidential candidates, Vice President Al Gore and Texas governor George W. Bush, have said little about the kind of appointments they would make and almost nothing about gay-related issues. But when asked about the justices he most admired, Bush has repeatedly pointed to Scalia and Thomas, the court's two most conservative members. Gore has cited Thurgood Marshall, a stalwart liberal and civil rights leader whom Thomas replaced.

Gore clearly hopes to capitalize on fears about Bush appointments to mobilize his base of progressive voters, including gays and lesbians. Shortly after the Supreme Court issued the Boy Scouts ruling and another one upholding abortion rights, Gore declared that "one extra vote on the wrong side would change the outcome, and a woman's right to choose would be taken away." At the same time, however, Gore declined to criticize the Boy Scouts decision.

Though polls show that only about one third of all voters consider the Supreme Court in choosing a candidate, gays and lesbians typically place greater emphasis on it. "Perhaps more than any other part of the electorate, gay voters know the importance of the courts," says Robert Bailey, an associate professor of public policy at Rutgers University who studies gay voting patterns. "They remember Bowers v. Hardwick [the 1986 case in which the court upheld Georgia's sodomy law], and they know how much courts affect their lives in fundamental family matters like marriage, divorce, and custody."

That phenomenon could complicate Bush's attempt to weaken the historic alliance between gay voters and the Democratic Party this election year. "I think gay voters will be nearly as motivated behind Gore because of the Supreme Court as they were after the 1992 convention, when Pat Buchanan unleashed his charming attacks on homosexuality," says Bailey. "For those who don't remember, the Boy Scout decision is a rude awakening."

Even so, presidents' appointments don't always match their campaign rhetoric. Gerald Ford appointed Stevens. David Souter, who was appointed to the court in 1990 by Bush's father, has generally supported gay rights. And Kennedy wrote the majority opinion in Romer v. Evans, the ruling striking down Colorado's antigay ballot measure.

In Texas, where Bush has been governor since 1995, judges are elected. But due to retirements, Bush has made several appointments to the state's supreme court. Legal observers in Texas say Bush has taken a largely moderate approach to filling sudden vacancies. "His appointments have generally been more diverse than [those of] other Republican governors in Texas," says D'Ann Johnson, executive director of the Texas Criminal Defense Lawyers Association, a public interest group based in Austin.

But when it comes to U.S. Supreme Court appointments by Bush, who opposes abortion rights, Coles sees a wolf in sheep's clothing. "If we have a president who uses opposition to the right to choose an abortion as a litmus test for appointments, I can almost guarantee that judges like that will be bad on gay issues," he says. "In terms of legal theory, the right to control one's body and gay rights are inexorably linked. Don't be fooled."

Find more about Supreme Court appointments and links to related Internet sites at www.advocate.com

RELATED ARTICLE: Rumors of retirement

The Supreme Court justices who may leave the court in the next four years

[1] JUSTICE ANTONIN SCALIA

Age: 64 Appointed: 1986 by President Reagan Position on gay issues: Possibly the strongest opponent of gay rights on the court, Scalia said in his dissent in the Amendment 2 decision that if was "rational" to criminalize gay conduct and to deny "protection to those with a self-avowed tendency to engage in the conduct." Reason for possible retirement: Upset about being consistently in the minority, Scalia is rumored to have said that a Gore presidency would be the last straw for him.

[2] JUSTICE RUTH BADER GINSBURG 

Age: 67 Appointed: 1993 by President Clinton Position on gay issues: Ginsburg has been a consistent supporter of gay rights and is probably the most gay-friendly member of the court after Stevens. Reason for possible retirement: Ginsburg has been undergoing treatment for colon cancer.

[3] JUSTICE JOHN PAUL STEVENS 

Age: 80 Appointed: 1975 by President Ford Position on gay issues: Stevens has been one of the court's most eloquent supporters of gay rights, writing stinging dissents both in Bowers and the Boy Scouts case. Reason for possible retirement: Stevens is the oldest justice on the court.

[4] CHIEF JUSTICE WILLIAM REHNQUIST

Age: 75 Appointed: 1972 by President Nixon; named chief justice in 1986 Position on gay issues: A staunch opponent of gay causes on the bench, Rehnquist upheld Georgia's sodomy law in Bowers v. Hardwick and the Boy Scouts' right to exclude gay members. He was one of three justices to oppose overturning Colorado's antigay Amendment 2. Reason for possible retirement: The justice with the longest tenure on the court, Rehnquist may prefer to retire if Bush can pick his successor.

[5] JUSTICE SANDRA DAY O'CONNOR

Age: 70 Appointed: 1981 by President Reagan Position on gay issues: One of the crucial swing votes on the current court, O'Connor has come down on both sides of gay issues, supporting Georgia's sodomy law and the Boy Scouts' antigay policies but voting down Colorado's Amendment 2. Reason for possible retirement: In addition to her age, a major consideration is that O'Connor has had breast cancer.