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Supreme Court abandons typical conservative leanings

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WASHINGTON — In blockbuster rulings on affirmative action and gay rights and in less heralded decisions this term, a Supreme Court dominated by conservative jurists looked less conservative than it has in years.

"On vitally important issues to social conservatives, they suffered serious defeats this term," said Thomas Goldstein, a Washington lawyer who specializes in the Supreme Court. "There was not a single victory to balance it out."

Serendipity plays a role in the mix of cases the court hears in a given year, and it can be misleading to look at any one year in isolation.

Still, the 2002-03 session will be remembered for its exceptions to the conservative rule, lawyers and law professors said.

In the term that ended last week, the high court bolted from a decade of rulings striking down or limiting racial formulas and upheld the continued use of race as a factor in university admissions.

The justices also made an about-face on the question of whether gay men and women can be prosecuted for what they do in the privacy of their bedrooms. That caused one of the court's core conservatives, Justice Antonin Scalia, to sputter that his colleagues had "taken sides in the culture war."

No less a conservative stalwart than Chief Justice William H. Rehnquist led the majority this spring in departing from the court's march to increase state rights at the expense of federal control in a case about family leave for state workers.

The court also upheld a legal aid financing program for the poor that political conservatives called an unconstitutional government assault on private property.

"These decisions were not as conservative as might have been expected," said Emory University law professor Robert Schapiro. "The affirmative action ruling is one I'll be teaching for many years to come."

The court's work left Douglas Kmiec, a Pepperdine University constitutional law professor and former legal adviser to Republican presidents, shaking his head.

"In affirmative action, federal-state relations, and, after the sodomy case, basic — and I do mean very basic — principles of constitutional interpretation have been tossed aside, not conserved."

That is not to say the court abandoned its conservative leanings.

A string of law-and-order rulings strengthened government powers to go after suspects and punish criminals. For example, the court upheld the nation's strictest "three-strikes" law, ruling that a California man's 50-years-to-life sentence for stealing videotapes was not unconstitutionally harsh.

Those tough-on-crime rulings were in keeping with the court's rightward shift under Rehnquist's leadership, a path that has taken the court far from its progressive stance under the Civil Rights era stewardship of Chief Justice Earl Warren.

It is a mark of the current court's fundamentally conservative outlook that all nine justices voted to allow Michigan to cancel family visits for prisoners caught with drugs, and that a six-member majority said Congress can require public libraries to block objectionable material on their Internet terminals or lose federal money.

Rehnquist and fellow conservative Justices Scalia and Clarence Thomas still held sway in a large percentage of the 73 cases decided this term. The three usually vote together and prevail when they can attract one or both of the court's center-right justices, Reagan appointees Sandra Day O'Connor and Anthony M. Kennedy.

It was O'Connor who joined more liberal justices to preserve affirmative action. That vote was 5-4. It was Kennedy who provided the crucial vote in the sodomy case.

In that case, the court set out a constitutionally protected right to adults' private sexual conduct. The government has no business peeping in bedroom windows, the court said in a ruling written by Kennedy.

O'Connor also voted to strike down a Texas sodomy ban, making the overall ruling 6-3, but she would not go nearly as far as Kennedy and her more liberal colleagues.

Religious broadcaster Pat Robertson was among many conservatives who condemned the decision, which he said would take the nation "down into a moral sewer."

The nine justices closed their term without any announcement of an impending retirement.

An opening on the court had been hotly anticipated on Capitol Hill and elsewhere, since it would give President Bush his first opportunity to name a Supreme Court justice.

The anticipation peaked with release of the court's final opinions Thursday, the day the court most disappointed political and social conservatives with its gay rights ruling.

"No justice may have retired physically, but a number managed to retire intellectually," Kmiec said.