High Court, High Anxiety

The Supreme Court is returning to the bench amid keen election-year interest in who sits on it now and who could sit on it soon depending on whether George W. Bush or Al Gore is elected. CBS News Sunday Morning Correspondent Rita Braver reports:

• They ruled Americans cannot have organized prayers before high school football games.
• They told Boy Scout troops they have the right to ban gay leaders.
• They said that the federal Food and Drug Administration has no jurisdiction to regulate tobacco as a drug.
• They found that grandparents don't have any constitutional rights to visit their grandchildren.
• They rejected attempts by the states to prohibit certain late-term abortion procedures.

Bush says, "I'm going to name strict constructionists to the court."

Says Gore: "Not only is the White House at stake, not only is the Congress at stake, but the next president will almost certainly select at least three justices of the Supreme Court. Maybe more."

This year, the battle for the presidency also is being considered a battle for control of the heart and soul of the Supreme Court.

"A Supreme Court appointment is the president's longest lasting legacy," says Tom Goldstein, an attorney who practices before the Supreme Court. He is a leading expert in tracking what the court does, and how.

He explains that the Supreme Court is really closely divided, and about half of its cases are decided by one group of five justices.

"It really tells you, on the issues that the court's confronting that are really important, really divisive," that it is only one vote that makes the difference, he said.

"So," continues Goldstein, "if one of them goes away, everything changes. The meaning of the Constitution would be completely different."

He says those five key justices are Sandra Day O'Connor (appointed by President Reagan, the first woman justice), Anthony Kennedy, Chief Justice William Rehnquist, and then the most conservative justices, Antonin Scalia and Clarence Thomas.

But the conservative majority does not hold on every issue. On the key issue of abortion, for example, Kennedy and O'Connor consistently have supported Roe vs. Wade, joining the court's more liberal members (John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter).

But one of those justices, Stevens, is 84 years old, and justices O'Connor and Ginsburg both have had health problems. That's why, in this election year, the buzz about the court is really the buzz about abortion.

ush has not made an outright vow to appoint justices who will overturn the right to abortion. But he has said that the two justices he most admires are Thomas and Scalia, the two strongest anti-abortion justices on the bench.

Gore, on the other hand, has all but promised to appoint pro-abortion rights advocates to the court. He is receiving intense support from groups like the National Abortion Rights League and People for the American Way.

But Ralph Neas, president of People for the American Way, says that though it attracts the most attention, abortion is just one of the big issues at stake for the Supreme Court:

He says that the religious right believes it it one election away from winning everything they've been trying to win during the course of the last 20 or 30 years, "whether it's overturning Roe vs. Wade, or whether it's about being able to sponsor school prayer, or give public monies to religious school. So it's one issue after another where they feel they'll be rewarded if George W. Bush is elected."

The view from the other side is equally stark. Just ask former Federal Judge Robert Bork, the Reagan nominee rejected for the Supreme Court in 1987 by a Democratic controlled Senate.

"I suspect that if Vice President Gore is elected president and has some appointments to make, we're going to see a lot more protection of criminals," says Bork. "And I would suspect we're likely to see the death penalty outlawed once more—I think the justices appointed by Gore will be—hard liberal. They will represent the core of the Democratic Party: racial preferences, normalization of homosexuality, religion pushed aside, abortion protected forever, so on and so forth."

And whoever becomes president will have a lot more power than just making Supreme Court appointments. The nine justices rule on fewer than 100 cases a year. Judges on the lower courts hear hundreds of thousands. And all of those judges are appointed by the president.

Says Goldstein, "Most of the actual law, the actual cases that affect you and me every day, those come in the trial courts and maybe the courts of appeal. And, hey, those people are like Supreme Court justices. You put them on, that's a lifetime appointment."

Goldstein says appointments by presidents Reagan and Clinton have left the ideological makeup of the lower courts in a precarious ideological balance.

Yet, no matter who is appointed, there's always the unpredictability factor. Justices O'Connor and Breyer recently confided to some high school students that they know they're supposed to do what the presidents who appoint them want them to do.

"Every president since George Washington has wanted to appoint justices to the court, if they have the opportunity to do so, who have views that the president thinks are compatible with the president's own," says O'Connor. "That's part of the process."

But it doesn't always work that way. resident Eisenhower called ultra-liberal Chief Justice Earl Warren one of his "great mistakes." Republican Gerald Ford appointed the current court's most liberal member, John Paul Stevens. Though President Bush named ultra-conservative Clarence Thomas to the court, he also got the far more liberal David Souter, whom some now call the "stealth candidate."

Says Breyer, "Once you put on the black robe, you are a different person. And politics is out."

And it's not a modern phenomenon. President Theodore Roosevelt put Oliver Wendell Holmes on the bench to help him on some anti-trust cases. But, notes Breyer, Holmes ruled against the president.

"Roosevelt said, 'That Judge Holmes! I could carve more backbone out of a banana.' He was pretty angry. Sometimes, they're surprised," says Breyer.

And there could be other surprises, too, because despite all of the predictions, none of the justices currently on the court seem in a hurry to go anywhere.

As Goldstein says, "I think even those that we sort of think of as old, say, 'I don't have anything that I'd rather do than this. And you'll pry my cold dead hands off the bench if you want to get rid of me. I'm here for the duration.'"