Is Eight Enough?

By Richard Lacayo

The U.S. Supreme Court begins a new term this week a bit shorthanded. With the prospects for Robert Bork's confirmation all but sunk, former Justice Lewis Powell's empty seat may stay empty for months. In some controversial cases, the eight Justices will be delicately balanced between left and right; with two wings of equal size, the court may wind up as a kind of judicial ostrich -- lots of flap but not much flight.

Shorthanded benches have occurred before.After the 1969 resignation of Justice Abe Fortas, a year elapsed before the Senate confirmed Richard Nixon's third nominee, Harry Blackmun. The Justices postponed some of the court's docket and even ordered rearguments on some cases they did hear. "When the vote was 4 to 4, they simply stopped," says Thomas Krattenmaker, associate dean at Georgetown law school, who was a clerk to Justice John Harlan. In 1985, after Powell had been absent nearly three months for treatment of prostate cancer, the court announced eight tie rulings, although it also ordered rearguments in four cases heard in his absence. By last week there were 91 cases on the docket for review this term, with dozens more to be added. In those it chooses to decide, a tie would leave the lower-court % decision intact without setting a Supreme Court precedent.

Powell was one of the court's most frequent swing votes. Without him, a number of 4-to-4 ties are likely. Though the ideological splits are by no means firm, deadlocks are possible on some of the thorniest questions scheduled for argument in the coming weeks:

SCHOOL PRAYER. Two years ago, when the court overturned an Alabama law that provided for a moment of silent "meditation or voluntary prayer" in the public schools, Powell and Justice Sandra Day O'Connor wrote in separate concurrences that a simple moment-of-silence law might be constitutional. This week the court will hear arguments concerning a New Jersey law that merely permits a moment of silent "contemplation and introspection." Two lower courts have already found the law unconstitutional, after concluding that despite its neutral language, the statute has a religious purpose.

ABORTION. The court will consider an Illinois law, struck down in a lower court, that requires some minors to inform their parents and wait 24 hours before an abortion. Previously the court has said that in certain circumstances states can require minors to obtain parental consent, but the Justices have also ruled that states cannot require adult women to observe a 24-hour waiting period.

DEATH PENALTY. There are 32 death-row prisoners around the country who were younger than 18 when they committed their crimes. In early November the court will consider whether capital punishment is permissible in such cases when it hears the appeal of a convicted killer who was 15 at the time of the crime.

FREE PRESS. Next week the court hears arguments in a press-censorship case involving a Missouri high school principal who ordered two pages removed from a student newspaper because of articles about pregnant teenagers and the effect of divorce on adolescents. The question is whether school officials may censor articles without demonstrating that they would disrupt school life or expose the school to lawsuits.

The Justices will be under pressure to resolve most questions, however reluctantly, because failure to do so would leave lawyers and lower courts unsure of the high court's direction. "There is a strong institutional drive to behave as if things are proceeding normally," says Yale Law Professor Paul Gewirtz. But will the drive be enough when the Justices try to steer in two directions?

With reporting by Anne Constable/Washington