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Vexing Social Issues Portend Stirring Term for High Court

By Joan Biskupic
The Washington Post

Opening this week what promises to be a particularly impassioned term, the Supreme Court will hear a raft of cases that delve into some of the more personal aspects of people's lives and how individuals relate to one another.

Sexual misconduct, redress for its victims, parental rights and physician-assisted suicide are among the emotionally laden subjects facing the nine justices. And it is in cases such as these - vexing social issues - where the court's generally conservative majority sometimes shows signs of unraveling.

Justices Sandra Day O'Connor and Anthony M. Kennedy, the critical swing votes, have consistently voted to hem in federal power. They have restricted affirmative action and other race-based policies and routinely favored law enforcement over defendants. But when it comes to the personal dilemmas that most touch the lives of individual Americans, the two justices and the court they have come to control defy predictions.

Last term, in a boldly worded opinion written by Kennedy and signed by O'Connor and four other justices, the court ruled that homosexuals cannot be treated differently under the law from anyone else. In 1992, just when it appeared there was a majority to overturn Roe v. Wade, O'Connor, Kennedy and David H. Souter - all three Republican-appointed justices - joined to pen a dramatic opinion upholding a woman's right to end a pregnancy.

The potential to reproduce such drama comes again this term, particularly when the court hears two cases on whether physicians may hasten a patient's death.

"The right-to-die' case is the most interesting post-Roe case involving the anguishing question of where to draw the line between individual liberty and government power," Yale University law professor Paul Gewirtz said.

In a 1990 "right-to-die" case brought by a comatose woman's parents who wanted to disconnect her artificial life-supports, O'Connor in particular showed she was stepping into the issue delicately. The court declared a constitutionally protected right to end one's life but said states - in this case Missouri - nonetheless can require clear and convincing evidence that a comatose person would have wanted artificial life-supports stopped.

O'Connor joined the majority but wrote separately to observe: "(N)o national consensus has yet emerged on the best solution for this difficult and sensitive problem. Today, we decide only that one state's practice does not violate the Constitution; the more challenging task of crafting appropriate procedures for safeguarding incompetents' liberty interests is entrusted to the laboratory' of the states."

Under Chief Justice William H. Rehnquist, the court increasingly has ruled that Washington has usurped the authority of the states, and in the 1996-97 term the justices will hear several cases testing how much further it will go in curtailing federal power and bolstering that of the states.

In one case, sheriffs in Arizona and Montana are challenging a federal handgun law known as the "Brady bill" as an infringement on state sovereignty. The law requires sheriffs to check the backgrounds of would-be gun buyers, and the sheriffs argue that the law allows the federal government to commandeer local labor.

The justices also will review whether a provision of Arizona's constitution that generally prohibits government workers from speaking in any other language but English violates free-speech guarantees.

"There is no going back on federalism," Georgetown law professor Susan Low Bloch said recently. "This is something Rehnquist and O'Connor have been working toward for years, and now that they have the votes, they are not likely to stop" efforts to diffuse federal authority to the states.

Two of the more hot-button cases that will be closely watched this year involve allegations of sexual wrongdoing by public officials. In one politically charged case, President Clinton has asked the justices to rule that a sexual-harassment lawsuit brought by former Arkansas employee Paula Jones interferes with the duties of a sitting president and should not go forward until after he leaves office.

"The president, unlike any other federal official, has the sole responsibility for an entire branch of the federal government," Clinton's lawyers told the justices. "For that reason, litigation against the individual who is serving as president unavoidably impinges on the constitutional responsibilities of the executive branch."

But lawyers for Jones, who claims that in 1991 Clinton made unwanted advances in a Little Rock hotel room when he was Arkansas governor, assert that court precedent protects the president from lawsuits relating to his official responsibility, but not from purely personal acts.