Rehnquist court left much unsettled

WASHINGTON -- The Supreme Court saw its responsibility clearly in a case last year involving prisoners at Guantanamo Bay: ''It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested," wrote Justice Sandra Day O'Connor in her opinion.

But prisoners who went to the court seeking clarity on their constitutional rights came away frustrated, a feeling familiar to litigants seeking clear, decisive rulings from this Supreme Court.

The divided court was unable or unwilling to say what kind of hearings prisoners should have; whether they are entitled to a lawyer; whether prisoner-of-war treaties should apply; or what kinds of evidence must be shown.

The result has been 15 months of tangled litigation while hundreds of prisoners wait for the chance to argue for their freedom.

Now, as Congress considers the nomination of John G. Roberts Jr. to be chief justice, the recent performance of the Supreme Court -- its ability to serve its core function of resolving constitutional disputes -- is a significant consideration in Roberts's confirmation hearings.

A review of recent Supreme Court decisions reveals that the court has had unusual difficulty reaching consensus on major issues and instead has resolved cases one by one, applying complicated balancing tests that give lower-court judges room to fill in the gaps with their own interpretations.

As a result, the same issues -- abortion, affirmative action, and separation of church and state -- are constantly churning through the federal system, as litigants hope to find a judge who is willing to apply the loosely defined Supreme Court standards in their favor.

''If the rules are unclear, you have to fight it out case by case," said Richard Fallon, a Harvard law professor. ''If the rules are clear, there's no reason to litigate."

Indeed, when the court produced two opinions on affirmative action in one day -- one affirming race-based university admissions, one striking down such a plan -- a frustrated Justice Antonin Scalia wrote: ''Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state education institutions are OK, today's . . . split double-header seems perversely designed to prolong the controversy and the litigation."

The ''split double-header" on affirmative action in 2003 was part of a trend in which the justices decide similar cases in different directions on the same day, thereby leaving lower courts to decide which principle to apply in future cases.

In January, the court offered two separate 5-4 opinions on the constitutionality of federal guidelines for sentencing convicted criminals -- one declaring them unconstitutional, another saying they were acceptable in an advisory capacity -- because Justice Ruth Bader Ginsburg switched sides over the question of whether merely advisory rules were constitutional. As a result, lower-court judges remain unsure when they should follow the guidelines, and many criminals are challenging their sentences.

Robert Weisberg, a criminal-law specialist and Stanford law professor, said of the Supreme Court's handling of the sentencing case: ''This one is just a mess."

Then, on the last day of this year's term, the court issued two 5-4 opinions in cases involving public displays of the Ten Commandments, one deemed constitutional and the other not, with Justice Stephen Breyer switching sides.

''In so many areas we're at these various crossroads," said Harvard law professor Laurence Tribe.

Tribe, whose treatises on constitutional law have been widely admired, chose not to embark on a planned work covering the court's rulings in recent years, saying he didn't think the undertaking was worth the effort because the law is at an in-between stage. ''You'd have to do too much 'on the one hand, on the other hand,' " he explained.

Law professors offer various theories for how the court got to this point. The nine-member body has been anchored in recent years by conservative justices Scalia and Clarence Thomas, who tend to favor hard rules rather than tests involving lots of judicial fact-finding. The late Chief Justice William Rehnquist usually sided with Scalia and Thomas. The other justices tended to prefer making narrow, fact-based decisions rather than setting bold precedents.

In many cases, law professors say, the conservatives would get three or four votes for a legal principle that the others considered too sweeping; the others would then have to hash out a decision based on their own sometimes contradictory impulses, a mixed application of principles, precedents, and compromises necessary to forge a majority.

The familiar pattern occurred last year when the court considered an allegation that Republicans in the Pennsylvania legislature had shifted around the state's congressional districts solely for political reasons. Scalia -- joined by Thomas, Rehnquist, and O'Connor -- declared flatly that claims of partisan redistricting must be regarded as political matters beyond the scope of the courts.

But Scalia's clear, sweeping rule got only four votes. Justice Anthony Kennedy agreed that the particular redistricting plan in Pennsylvania passed constitutional muster, but he contended that purely partisan redistricting plans in other states might not. That left lower courts in an almost impossible position: Scalia's blanket refusal to consider such cases can't be considered the law of the land, because it didn't command a majority of the court; but Kennedy's concurring opinion did not lay out any standards for determining when a partisan redistricting plan should be declared invalid.

The Supreme Court declined to revisit the issue when Democrats in Texas sued to block a partisan redistricting plan promoted by House majority leader Tom DeLay; lacking clear guidance from the Supreme Court, a lower court allowed the plan to stand. Republicans gained four Texas seats in last year's election.

Some law professors maintain that O'Connor, Kennedy, Breyer, and other justices who sometimes find themselves the deciding votes in cases are better at finding the middle ground than divining legal rules that others can follow.

''They have different intellectual strengths, which aren't embodied in opinions that are sometimes compromises," said Mark V. Tushnet, a Georgetown University law professor and author of a book on the Rehnquist court. ''They have strengths that don't lie in crafting a powerful opinion -- they have other strengths."

Tushnet said that O'Connor, the most frequent swing vote on the court, ''has quite good judgment. From a relatively conservative perspective, she understands how the world works. And that's a skill."

But O'Connor's instinct for the middle ground has led the court away from clear, bright lines and into a grayer area where judges rigorously consider facts and arguments before making decisions. Such a decision is often frustrating for litigants, because it places them at the mercy of lower-court judges who can impose their own views. O'Connor's approach, law professors say, is most visible in cases involving abortion and affirmative action.

Until 1992, courts determined whether states could restrict abortions based on the stage of the pregnancy: Very few restrictions were allowed in the first trimester, more in the second and third trimesters. In a 1992 decision, however, O'Connor declared that courts should instead consider whether a restriction posed an ''undue burden" on a woman's right to an abortion.

The result has been a flood of new initiatives to restrict abortions and new cases in which judges are called upon to decide whether the restrictions are ''undue burdens" -- a standard often decried as subjective and fuzzy.

More recently, O'Connor was the swing vote in the split decisions on affirmative action -- declaring that colleges may consider race as a factor in admissions, but striking down a numerical admissions plan that gave extra points to minority applicants. Like the ''undue burden" test on abortion, the affirmative action test relied heavily on the individual perceptions of judges.

Fallon, for one, holds O'Connor primarily responsible for the court's shift from rules to judicial balancing tests: ''With O'Connor in the middle you get a lot of decisions that call for consideration of various factors rather than clear rules. What's an undue burden? That's exactly the kind of question O'Connor thought the law ought to be asking."

Kenneth Starr, the former US solicitor general and Whitewater prosecutor, in a recent book criticized O'Connor's approach for having given greater discretionary power to judges of all stripes. But he praised the Rehnquist court overall for curbing the excesses of its more liberal predecessors.

Like Starr, who is a noted conservative, many liberal-leaning law professors also prefer the complicated balancing tests of the Rehnquist court to the perceived alternative -- clearer rules that are hostile to their views.

''It might be better to have clear, general rules, but it might not be if the clear rules are bad," said a University of Chicago law professor, Cass Sunstein.

But the law professors' level of comfort with the court may not be shared by the court's actual constituents: those seeking justice for themselves.

Last year's Guantanamo decisions were initially interpreted as a victory for so-called ''enemy combatants" being held at the island prison. And the Supreme Court did, indeed, reject President Bush's assertion that his wartime powers allowed him to hold prisoners indefinitely with no judicial review. But the court's failure to decide what kind of hearings prisoners should receive has led to a blizzard of cases and contradictory rulings by lower courts.

Now, 15 months later, the cases are clustered at the appeals-court level, and probably will return in some form to the Supreme Court -- though the plaintiffs will have served a minimum of two years of extra imprisonment while waiting.

''I think many people have come to conclude that the Supreme Court did nobody any favors by failing to move the ball further down the field," said Eugene Fidell, president of the National Institute of Military Justice.

Sentencing of criminals is also in a flux. Michael Malouf, a convicted drug dealer from the Boston area, would have received 10 years in prison under the sentencing guidelines. But because the Supreme Court, in approving the use of the guidelines in an advisory capacity, left unclear the standard of proof for determining how many grams of cocaine a seller had distributed, Malouf ended up with a sentence of five years.

Malouf's judge, Nancy Gertner, wrote that the status of the guidelines is so uncertain that she made two separate sentencing decisions -- 10 years if the amount of drugs was to be determined by the ''preponderance of the evidence," or five years if the amount had to be proven ''beyond a reasonable doubt," the standard she believed the Supreme Court intended.

Sentencing guidelines -- like abortion, separation of church and state, and most other issues faced by the Supreme Court in recent years -- are likely to bubble up again, legal specialists said: The court's incremental approach almost assures a return to the court's docket. And with Rehnquist having died and O'Connor on the verge of retirement, scholars can only wonder how Roberts and a second Bush appointee might change things.

''I think Roberts will be better at Scalia's own game because he's more affable," said Tribe, predicting a shift toward harder rules in a conservative direction.

Ultimately, analysts said, much will depend on how the justices influence each other. And that, for now, is unknowable.