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JUSTICE : Comparatively Young High Court Expected to Show Caution : In term opening today, the justices face tough calls on affirmative action and racial gerrymandering. Term-limits ruling also due.

October 03, 1994|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — As Supreme Courts go, the one that takes the bench this morning is young and inexperienced, still conservative in its outlook but likely to be more cautious than bold in making decisions.

This fall, the life-tenured justices will consider whether the voters by law can limit the terms of their representatives in Congress. They are also set to rule on whether the government can give an edge to minorities in competing for contracts and whether the states can aid minority candidates in drawing electoral boundaries.

But the outcomes are especially hard to predict because the court itself has been reshaped in recent years.

Of the nine justices that open the fall term, six have joined the court since 1986, a turnover rate more rapid than at any time since President Franklin D. Roosevelt replaced the "nine old men" from 1937 to 1943.

But where F.D.R. transformed the staunchly pro-business court into a dependably liberal and pro-labor forum, the recent appointees have come from three different presidents who share no common ideology.

Unlike the New Deal court, the recently revamped court has yet to establish a clear identity. The conservatives, led by Chief Justice William H. Rehnquist, still have the votes to drive the agenda. But they have been unable to form a strong enough alliance that would enable them to rewrite the law in areas such as abortion, religion or civil rights.

And this court is unquestionably younger than ever before.

A decade ago, the high court was dominated by aging justices, five of whom were 78 or older. Most had gone to law school in the 1920s and had begun their legal practice during the Great Depression.

Now, none of the nine justices has reached age 75, and a majority of them emerged from law school after 1960.

"It's an amazing transformation. The court has gotten 30 years younger in a decade," Washington attorney Theodore Olson says.

Monday marks the debut of 56-year-old Justice Stephen G. Breyer. He will sit at the far end of the bench opposite President Clinton's other appointee, Justice Ruth Bader Ginsburg, 61.

But President George Bush's two appointees are actually younger: David H. Souter, 55, and Clarence Thomas, 46.

And Ronald Reagan's three nominees are moving into their judicial prime years: Sandra Day O'Connor, 64; Antonin Scalia, 58, and Anthony M. Kennedy, also 58. The court's oldest justice is 74-year-old John Paul Stevens, a Gerald R. Ford appointee.

Despite their youth, the new justices have not proved especially energetic when it comes to deciding cases. So far, the court has put only 36 cases on its fall argument schedule, about half the norm of a decade ago.

Under Rehnquist, a Richard Nixon appointee who turned 70 on Saturday, the court has been stingy in hearing appeals filed by criminal defendants or others who claim that they have suffered an injustice.

When the old liberals, such as William J. Brennan, Thurgood Marshall and Harry Blackmun, held sway, the justices kept an open ear for hard-luck stories. The prisoner who said he was unjustly convicted, the worker who said his rights were unfairly denied, the mother who said her benefits were wrongly terminated, all had a chance of being heard.

But these days, most such claims are quickly dismissed. Last week, the court met in a brief session and rejected more than 1,700 appeals that had piled up over the summer. In all but a handful of those cases, the appeals are read by young law clerks and the cases are rejected without a moment's discussion among the justices.

Liberal legal activists actually have been cheered somewhat by the court's relative inactivity. Two years ago, the conservative-led drive to overturn the Roe vs. Wade decision that legalized abortion and to restore some prayer in the public schools came up one vote short.

"The constitutional counterrevolution has fizzled," Steven Shapiro, national legal director for the American Civil Liberties Union, said last week.

But he may have spoken too soon. Race may emerge as the key theme of the 1994-95 term, and in that area, the five conservatives tend to agree. Rehnquist, Scalia, Thomas, Kennedy and O'Connor have said that affirmative action in favor of minorities amounts to reverse discrimination against whites, and they may be ready now to put that view into law.

Last week, the court announced that it will hear a Colorado case that challenges the practice of preferring companies owned by minorities and women for awarding federal highway contracts.

Later this fall, the court is also expected to plunge back into the voting-rights controversy over "majority-minority" electoral districts. In a 1993 case, the five conservatives joined to rule that "racial gerrymandering" is unconstitutional. This term, they need to clarify whether all racially drawn districts are illegal, or only those that are "truly bizarre" in appearance.

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