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June 18, 2003

10 Decisions Remain This Term

By LINDA GREENHOUSE

WASHINGTON, June 17 — This is tea-leaf reading time at the Supreme Court, and, no, the only subject is not whether any justices are planning to retire.

Inside the building, where the frenzy of retirement speculation is largely though not completely discounted, the current topic is when, and under what circumstances, the court plans to announce the remaining 10 decisions and conclude its current term.

If the recent past is any guide, the justices are planning no more than two more decision days: Monday and Thursday next week. That presents the distinct possibility that landmark rulings on affirmative action, gay rights and commercial speech could all be handed down on a single morning.

It has happened before: people still remember the nine decisions, totaling 446 pages, that the court issued on the last day of its 1987-88 term. Such an outpouring of important but often elusive and contested legal language washes over the nation like a tidal wave, leaving confusion in its wake and agenda-driven spin control to fill in the gaps in public understanding.

Many outside the court assume there is a fixed date for the end of the term that mirrors the statutory starting date of the first Monday in October. But that is not the case. The target for the end of the term has been set by a series of internal markers, officially unacknowledged but verified through long observation.

In the 1980's it was Justice William J. Brennan Jr.'s ferry reservation for his summer visits to Martha's Vineyard. Now it is the annual conference of the United States Court of Appeals for the Fourth Circuit, for which Chief Justice William H. Rehnquist serves as the circuit justice. He never misses it, and is to go to the Homestead Resort in Hot Springs, Va., on June 26.

But the fact is that the end of the term is not really under the court's collective control, despite the best efforts of the chief justice, an exacting manager who has imposed a series of deadlines aimed at avoiding the end-of-term debacles that regularly occurred under his predecessor, Chief Justice Warren E. Burger. In those days, there was often a case or two that the court simply could not manage to decide, meaning that the case had to be restored, embarrassingly, to the calendar for reargument during the next term.

Chief Justice Rehnquist requires all majority opinions to be in internal circulation by June 1. The deadline for circulating dissenting and concurring opinions was Monday of this week. Nonetheless, any justice can request a delay in issuing an opinion — to respond to someone else's recently added footnote, for example.

Justices accord such a courtesy to one another in the knowledge that in some future term, they might be the ones requesting more time. Justice Harry A. Blackmun's extended labor on a 1989 abortion case kept the court in session over an extra weekend, until Monday, July 3.

Such a scenario, which would extend the term into the week of June 30, may be the only prospect for avoiding an end-of-term pileup of legendary proportions next week. The superheated atmosphere was captured today by an announcement from the media relations office at the University of Michigan that if the decisions in the Michigan affirmative action cases come down on Monday, the university's president, Mary Sue Coleman, will be on the court's plaza beginning at 10:30 in the morning to discuss them.

The only problem is that with opinions being announced from the bench at 10 o'clock, in a process that often takes 15 minutes or more, there is almost no chance that either President Coleman or any of her questioners would have had the opportunity to read and absorb them. But she will undoubtedly have an eager audience of television news reporters grateful for a live picture.

Meanwhile, a favorite court-watchers' guessing game is under way — who is writing which opinions? This is a form of card-counting that starts from the premise that the two-week periods in which the court sits for arguments throughout the term result in a fairly even distribution of opinions within each sitting.

Of the 11 cases argued in February, only one is undecided and only Chief Justice Rehnquist has not written a majority opinion. The case, United States v. American Library Association, raises the First Amendment question of whether the government can require public libraries to install antipornography filters restricting Internet access.

If Chief Justice Rehnquist is in fact writing the majority opinion, there is little doubt that the court will uphold the law, the Children's Internet Protection Act. On the other hand, he is one of the court's fastest writers, raising the question of why the decision in what is now the term's oldest undecided case is taking so long. One possibility is that there are many separate opinions, both concurring and dissenting. Perhaps he started out writing a majority opinion but lost the majority along the way.

The justices turned briefly from their labors today to break ground for a major modernization project for the court that will move the police department to a two-story underground annex and upgrade all the building's internal systems. Chief Justice Rehnquist and Justice Sandra Day O'Connor turned ceremonial shovels on the lawn where the excavation will soon begin.

Both justices are the subjects of retirement rumors, and many in the small crowd of dignitaries, sheltered under a tent in the light rain, surely wondered: would either stay around to enjoy the fruits of the five-year $122 million project?

At 73, Justice O'Connor is five years older than the Supreme Court building. Her tone was light, but her words conveyed a certain poignancy when she remarked that when a building turns 70, "we can take the infrastructure and change it and make it like new again," adding, "I wish that were possible for individuals, but it isn't."


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