Rehnquist's legacy takes shape

The conservative majority of the United States Supreme Court has now served notice: It intends to pursue, aggressively, a strategy of reordering the balance of power between the states and the federal government.

The justices had said as much in earlier years - but in isolated cases and in tempered tone.

By contrast, last week's rulings in three federalism cases, which sharply restricted the US government's ability to regulate states, qualify as blockbusters - and may ultimately help define the legacy of the Rehnquist court.

In a term that otherwise was stamped "business as usual," the federalism cases hold the potential to dramatically change the course of the nation. Depending on who wins the 2000 presidential election - and the right to fill any high-court vacancies - Chief Justice William Rehnquist may realize his life-long ambition of restoring "true sovereignty" to the states while chopping the size of the federal government.

The task would be accomplished largely by dismantling a good portion of the huge maze of federal regulations and laws that expanded national power at the states' expense since the New Deal in the 1930s.

Of course, it's too early to know whether Chief Justice Rehnquist and the conservative wing of the court can succeed. All three cases were decided on a 5-to-4 vote, a pretty thin majority for such a fundamental issue, analysts say.

"I think the jurisprudence remains highly unstable," says Burt Neuborne of the Brennan Center for Justice at New York University Law School. "It is really much too early to know whether these precedents will stand up over time."

Nonetheless, Daniel Elazar, director of the Center for the Study of Federalism at Temple University in Philadelphia, says he is thrilled. "This majority - which is slender - is for the first time in many years attempting to restore some meaning to the idea of state sovereignty," Mr. Elazar says. "This [federalism] is a mosaic that has been broken down and is being repaired. Every decision is another piece getting back to its constitutional origins."

Until the federalism decisions last Wednesday, the 1998-98 term was notable more for the red-hot cases the court didn't take - school vouchers, campaign-finance reform, and the "three strikes, you're out" sentencing law, among others.

IN MOST other cases on the docket this term, it was a remarkably congenial year, in which pragmatism seems to have reigned supreme near the court's center.

The court struck down a Chicago loitering ordinance, made school districts liable for student sexual harassment, and disallowed a California law limiting welfare payments. Not exactly a grand slam for conservative jurisprudence.

Instead, the rulings are evidence that compromise and coalition-building took place among justices on both sides of the ideological divide.

It was a year in which everyone won a little and everyone lost little - kind of a court for all seasons. "It is a volatile court. It is a court that is rushing very quickly in any direction in which it can muster five votes," says Barry Friedman, a law professor at Vanderbilt University in Nashville, Tenn. "A lot of what went on this term had a high amount of unanimity."

Most of the court's biggest cases were decided by coalitions much broader than the 5-to-4, conservative-liberal split that emerged in the federalism cases. "They tend to shy away from these major pronouncements or expansions or contractions of law," says Barbara Perry, a professor of government at Sweet Briar College in Virginia and author of the forthcoming book "The Priestly Tribe: The Supreme Court's Image in the American Mind." "They will look for the middle ground."

The justices unanimously decided to lift a federal ban on broadcast ads of casino gambling, and likewise there were no dissents in the ruling that the media must get permission from a property owner before accompanying police officers onto private property.

By votes of 7-to-2, the justices narrowed the definition of who qualifies for protection under the Americans with Disabilities Act (ADA), and struck down a California law that restricted welfare payments to new residents.

By votes of 6-to-3, the justices struck down a Chicago gang loitering ordinance as too broad, invalidated a Colorado law that sought to regulate political-referendum workers, and ruled that mentally disabled residents of state mental hospitals are empowered to sue for access to community-based programs outside hospital walls and fences.

Perhaps the best example of this year's pragmatism is Justice Sandra Day O'Connor's decision in the student-to-student sexual-harassment case. At issue in the case was whether the school district could be sued for failing to intervene after a girl in elementary school repeatedly complained about unwanted touching and offensive comments by a boy in her class.

The case divided the justices along its traditional liberal-conservative split, with the liberals finding that the law held school districts liable when they act with intentional indifference to a victim of discrimination. The court's conservatives viewed the case through the prism of federalism, seeing it as one more example of an attempt to expand the authority of the federal government into areas that are best left to state and local officials.

Justice O'Connor is a staunch supporter of the cause of federalism. But she is also a working woman who knows firsthand about gender discrimination. In this case, as in virtually all gender cases, she sided with the liberals.

When the case was announced, it sparked an impassioned dissent from Justice Anthony Kennedy. "Federalism and our struggling school system deserve better from this court," he said.

As for the Rehnquist court's place in history, most analysts say it is too soon to consider. They say it may rise or fall on the basis of the federalism gambit.