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'Nine Scorpions In A Bottle'

Scenes from the last days of the U.S. Supreme Court's 1991-92 term: Justice Sandra Day O'Connor weighing various legal tests, Justice Anthony Kennedy amending his principles from one case to the next, Justice Antonin Scalia displaying his pungency.

Forget the long-awaited abortion ruling. This was the annual skit performed by law clerks at term's end. In "Supreme Court Squares"--a sendup of the game show "Hollywood Squares"--the clerks played each of the nine justices and answered ridiculous questions as two litigious contestants vied for victory. (Sorry, no cash prizes.) Several justices attended. Kennedy's name elicited the clerks' best gag: they played the theme song from the old TV sea classic "Flipper." As it turned out, the spoof wound up portending the positions the justices would take five days later in the abortion case.

In addition to whatever political jolts it caused, the ruling in Planned Parenthood v. Casey showed that the outer-limits conservative justices were still one vote short of taking control. Despite six appointments by Presidents Reagan and Bush, the court refused to become the standard-bearer of an ideological charge. While the 168-page Casey decision was badly factionalized, the message was clear: by a 5-4 margin, abortion remained a constitutional right. The fissures within the court over abortion were transparent; but they exposed, too, just how mean-spirited and tense life has become inside the Marble Temple. "Nine scorpions in a bottle," Oliver Wendell Holmes's description of the court, never had more resonance.

The Grand Provocateur in Casey and throughout the term was Scalia. He's the master of both legal theory and one-liners--a cross between Benjamin Cardozo and Don Rickles. Even if the other justices don't agree with Scalia, they all have to deal with him. In Casey, Scalia wrote a ringing dissent that read like an erudite version of "did too, did not" in grade school. " To portray Roe as the statesmanlike 'settlement' of a divisive issue, a jurisprudential Peace of Westphalia," he cracked, "is nothing less than Orwellian." Judicial restraint? Well, he explained, he just had to "respond to a few of the most outrageous arguments, which it is beyond human nature to leave unanswered." And his zinger? Mocking the thunderous opening line of the majority opinion, "Liberty finds no refuge in a jurisprudence of doubt," Scalia countered: "Reason finds no refuge in this jurisprudence of confusion."

It was the kind of take-no-prisoners stance that Justice William 0. Douglas used to write on the left. "The only soul I have to save is my own," he liked to say. That approach dismisses any thought of piecing together a consensus. It may even drive colleagues away, much the way a bombardier beetle emits a noxious gas that scares away other bugs. In Casey, three justices, who in the past seemed predisposed to agree with Scalia on many issues, instead took the middle ground. While O'Connor, Kennedy and David Souter didn't moderate their views to spite Scalia, their joint opinion-the first of its kind since 1958-suggests alienation from the hard right. "He's not following the Dale Carnegie School of Opinion-Writing," says Harvard law professor Laurence Tribe.

O'Connor's votes over time show the shift. Three years ago, she sided with Chief Justice William Rehnquist in 93 percent of the cases; this year, that's down to 72 percent. Sources who know O'Connor well say she has made a concerted effort to lead the centrists and wants to be known for more than being the first female justice. It was her "undue burden" test, offered up in the Webster abortion case in 1989 with no takers, that last week won over Kennedy and Souter to form the decisive coalition.

The three tend to be cautious, fact-bound judges who decide cases based on their practical effects rather than some lofty, dispassionate doctrine. A former Reagan domestic-policy aide, Gary Bauer, calls them the "wimp bloc." Movement conservatives assail Kennedy the most for leaving the ideological homestead. In Webster, he was on the verge of overruling Roe v. Wade, the 1973 decision making abortion a constitutional right; now he supports it (with limits). Critics of Kennedy and Souter-nominees who followed the Senate's rejection of Robert Bork--say their brand of judging plays to public opinion. They cited Souter's extraordinary step of acknowledging the political pressure on the court. Speaking from the bench, he warned that overruling Roe " would subvert the court's legitimacy beyond serious question." Souter clearly is learning how to play the court: he voted with the majority in 13 of the 14 cases that split 5 to 4 this term.

The scorecard in Casey also highlighted how the rookie justice, Clarence Thomas, has settled in as Scalia's ideological stablemate, voting with him 85 percent of the time. Along with Rehnquist and Byron White, as well as Scalia, he urged tossing out Roe. That record raises new questions about his confirmation hearings last fall. While he expressed no view on Roe, he did indicate support for First Amendment freedom-of-religion precedents that he nonetheless voted to scuttle last month. Just as the likes of O'Connor may have been repelled by Scalia, the embattled Thomas in his first term may have been drawn in by his charisma.

The most revealing part of Casey came in a grace note by Blackmun, rare in its personal tone. "I am 83 years old," wrote the author of Roe. "I cannot remain on this court forever, and when I do step down, the confirmation process for my successor may well focus on the issue before us today." If he's correct, the next justice will arrive at the Marble Temple with enough battle scars to fit right in.

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