KINDER'S COMMENTARY: CONSERVATIVE JUSTICES FLEX MUSCLES

"I made two big mistakes as president," Dwight Eisenhower is said to have remarked, "and they're both sitting on the Supreme Court." Ike was referring to his appointments of the late Chief Justice Earl Warren and former Justice William Brennan. He was ruefully voicing a sentiment common, not just to presidents, but to all court-watchers. For once those nominees are confirmed, they are there for life, and no one can really be sure how they will decide even one case, much less a series of cases.

Reminiscing about Ike's two big mistakes is prompted by this week's conclusion of the spring term of the United States Supreme Court. The court handed down at least four momentous decisions on their term's final day. One fact is abundantly clear: There is now, on most issues, a narrow (5-4), working majority of conservatives on the court.

Making up that majority are Chief Justice Rehnquist and associate justices Scalia, O'Connor, Kennedy and Thomas. Rehnquist dates back to an appointment by Richard Nixon; the others were all appointed by Presidents Ronald Reagan and George Bush.

A pattern has emerged wherein either justices Kennedy or O'Connor can be a "swing vote." If either swings to the other side, the result is a 5-4 vote for the position of more liberal justices Stevens, Breyer, Ginsburg and Souter. Former President Bush hasn't yet said it for attribution, but he should be admitting (if he hasn't already) that Souter is his big mistake, ranking right up there with the one that cost him reelection: his 1990 betrayal of his no-new-taxes pledge, which had been the defining moment of his come-from-behind 1988 victory.

Even before this week's big decisions, Justice Scalia got off one of the finest and most quotable lines of jurisprudence in his concurring opinion two weeks ago in the case that will dramatically slow down government's involvement in the racial preference and quota business. "In America," Scalia tartly observed, "we have no debtor and creditor races ... just Americans."

Justice Clarence Thomas, whose work is characterized by brilliant legal reasoning and prodigious output, is emerging as a star, fully vindicating the confidence of his backers from President Bush on down, as well as the agony of his confirmation and the fierce battle that surrounded it. The likelihood of decades of service by Thomas, and the outstanding quality and quantity of his legal scholarship, will be the most important legacy of his sponsor, former Missouri Sen. John Danforth. Incidentally, I just got around to reading the Danforth book on the Thomas confirmation. Entitled "Resurrection", it is a superb account, a quick read and well worth your time.

The decisions of this past Thursday were stunning in their sweep. Consider the two cases expanding religious speech: In a 5-4 decision, the court ruled for the first time that public funds could go directly to a private religious activity. Specifically, the court ruled that the University violated the free speech rights of students running a religious publication by denying them the benefit of student activity fees provided other groups.

In the other case, the court ruled 7-2 that officials in Columbus, Ohio violated the free speech rights of Ku Klux Klan members by refusing permission to erect a cross in a public square across from the courthouse.

Not even the court's decision upholding the Endangered Species Act can dim the luster of conservative-leaning rulings. After all, conservative jurists seek neither to overturn nor amend bad laws; they must be content to interpret them. Efforts to amend this runaway law will have to be done by Congress, acting through the elected representatives of the people. Jurisprudence at its best.

~Peter Kinder is the associate publisher of the Southeast Missourian and state senator from Cape Girardeau.