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Deadlock Feared as High Court Returns : 4-4 Split May Leave Lower Rulings on Abortion, Execution Intact

October 05, 1987|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — An evenly divided Supreme Court returns to work today facing potential 4-4 deadlocks on a series of issues that have split its liberal and conservative members before.

While the Senate considers whether to fill the court's ninth seat with Judge Robert H. Bork, the eight remaining justices will hear cases on abortion regulations for minors, rent control, a required moment of silence in schools, the death penalty for juveniles and job rights for homosexuals.

If the justices split 4 to 4 on these cases, the high court will issue no decision, and the lower court's ruling will stand.

Many court observers say they do not expect the court to make an abrupt change in law during this period of transition.

"I don't see a heck of a lot of great significance coming this fall," said University of California, Berkeley, law dean Jesse Choper. Instead, he said, the court has before it cases that test the middle ground on controversial, well-litigated issues such as abortion and school prayer.

That would give William H. Rehnquist little opportunity in his second year as chief justice to steer the court in a conservative direction. In Rehnquist's first year, he failed to secure a conservative majority on most issues except criminal cases. Instead, the court's senior liberal, William J. Brennan Jr., won most of the key civil rights and civil liberties cases.

Rehnquist was joined frequently last year by Antonin Scalia, who joined the court at the same time Rehnquist was elevated to chief justice, and by Byron R. White and Sandra Day O'Connor. Brennan could typically count on the support of Harry A. Blackmun, Thurgood Marshall and John Paul Stevens.

The ninth justice, Lewis F. Powell Jr., provided the key swing vote on many issues. But Powell retired at the end of the court's term on June 26 and, until someone replaces him, court observers expect 4-4 splits to prove common on sensitive issues.

Even if Bork gains Senate confirmation--and that appears to be an increasingly unlikely prospect--he will miss some of the cases to be argued early in the new term. And if he is defeated and President Reagan must find a new nominee, the delay could leave the court unable to decide its toughest cases throughout its 1987-1988 term.

Senate leaders say they do not expect a floor vote on whether to confirm Bork until late October or early November. Thus, even if he is confirmed, he probably would miss the 40 cases to be argued by Nov. 10.

In an average year, the high court decides about 160 cases, and 20 or 30 of these are typically decided on 5-4 votes. The voting in several cases to be heard this fall is expected to split the court along these lines:

--Can Illinois require a minor girl to wait 24 hours after she notifies her parents before she can get an abortion (Hartigan vs. Zbaraz, 85-673)?

A federal appeals court in Chicago said no, concluding that the required delay was an undue burden that was intended to dissuade girls from having abortions. The state appealed, arguing that the delay allows for "meaningful consultation" between the girl and her parents.

The California Legislature recently passed a similar measure, which has not yet been tested in court. O'Connor probably holds the key vote on the Supreme Court, since she has suggested in past cases that women have a right to an abortion but that the state has some authority to regulate the practice.

--Can New Jersey require its public schools to open each day with a moment of silence for "private contemplation or introspection" (Karcher vs. May, 85-1551)?

An appeals court in Philadelphia said no, ruling that the law had no other purpose than a religious one. The former Speaker of the state Assembly appealed to the Supreme Court, arguing that the law does not mention prayer or religion.

In 1985 the high court rejected an Alabama law calling for a moment of silence for voluntary prayer, but five members also said that a clearly non-religious law could be approved. This case could be dropped without a decision, however, because the court could conclude that the former Speaker has no legal standing to bring the appeal.

--Can Oklahoma execute a man who committed a murder at age 15 (Thompson vs. Oklahoma, 86-6169)?

A state appeals court said yes, but his attorneys contend that imposing the death penalty for a crime committed as a juvenile is cruel and unusual punishment banned by the Eighth Amendment.

The high court majority has repeatedly upheld capital punishment but it has also limited its application. Two years ago, the court ruled that insane people could not be executed.

--Does a city rent-control law amount to a government taking of private property (Pennell vs. City of San Jose, 86-753)?

The California Supreme Court, arguing that it does not, last year upheld a San Jose rent-control law and concluded that it allowed landlords reasonable rate increases.

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