Finality Seems to Elude High Court's Grasp

In Ruling on Constitutional Controversies, the Justices Are Leaving Them Unsettled

The day before the Supreme Court ended its term last week, Justice John Paul Stevens, the court's 85-year-old liberal lion, mounted his seat at the mahogany bench and took aim at his conservative colleagues for "avoidance of our duty."

The same five-member majority that had ruled for George W. Bush in the disputed 2000 election had just invoked procedural reasons to dismiss the case of a U.S. citizen, Jose Padilla, who was challenging his indefinite incommunicado military detention by the Bush administration.

The five -- Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas -- had concluded, over Stevens's objections, that the court could not responsibly stay out of the election dispute. Now, Stevens expressed dismay that they would show judicial restraint in a case where, he said, "nothing less than the essence of a free society" was at stake.

"Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law," Stevens said, his voice seeming to tremble with emotion. "[I]f this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyranny even to resist an assault by the forces of tyranny."

Yet, in calling for decisive action, Stevens was voicing a minority sentiment -- not only in the Padilla case but also in the term as a whole.

To a surprising degree, given its confident recent strokes such as upholding affirmative action in higher education and invalidating federal laws that intrude on state sovereignty, the court proceeded incrementally, even hesitantly. In case after case, it addressed big issues without really settling them.

Though the court did subject the Bush administration to federal court oversight of its imprisonment of citizens and noncitizens as terrorism suspects, there was no majority of the court for an overall legal theory on the president's authority to detain citizens as "enemy combatants."

In a plurality opinion by O'Connor, the most moderate of the conservatives, the court basically announced that judges must balance the competing interests of security and liberty, outlined some suggestions for how to do that -- then left it to lower courts to figure out the details.

The court permitted the phrase "under God" to remain in the Pledge of Allegiance as recited by schoolchildren, but did so without deciding the core question of whether it violated the constitutional ban on official religion.

The court declined to decide whether Vice President Cheney must turn over the records of his 2001 energy policy task force. Instead, the justices prolonged the case by sending it to a lower court for reconsideration.

Even when a five-member majority clearly felt that a 1998 federal law designed to shield children from Internet pornography violated free speech, they did not strike it down outright, but ordered a lower-court trial on some narrow factual issues.

It was as if the justices, at a time when the country is involved not only in war but also a closely fought election campaign, had lost confidence in their ability to forecast the likely practical or political impact of their actions, and reined themselves in accordingly.

"In a divided nation and an election year, the court is test-driving a number of different principles without actually forking over a down payment," said Mathew S. Nosanchuk, a Washington lawyer who practices before the court.

Certainly this performance minimized the chances that any of their decisions would turn the court itself -- or future judicial appointments -- into a bigger election issue.