WASHINGTON - State and local governments received a mixed message from the Supreme Court during the 1991-92 term, reflecting a court that has not yet coalesced behind a single approach to deciding cases.
"I detect a court that is just beginning to gel, but has not yet determined a course," said Geoffrey P. Miller, Kirkland & Ellis professor at the University of Chicago Law School. "There appear to be three power centers on the court, and what we're seeing is some jockeying. It's uncertain which of the three will become dominant."
One of the three blocs has a decidedly pro-states' rights bent, making the battle for philosophical preeminence on the court of keen interest to municipal officials. But results from the past term, which ended Monday, are equivocal.
"This has been a really bad year for states at the Supreme Court," said Charles Rothfeld, a lawyer in the Washington office of Mayer, Brown & Platt and former chief counsel for the State and Local Legal Center, which represents municipal interests at the court.
In tax cases, for example, states won only two of seven decisions. In one, the court upheld California's Proposition 13 and said states may use acquisition-value property tax systems without violating the Constitution. In another case, out of Wisconsin, the court said the state could tax the William Wrigley Jr. Co. because some of the gum manufacturer's sales representatives did more than solicit orders in Wisconsin.
But those victories appear small when compared with the defeats.
In Quill Corp. v. North Dakota, the court said states may not require direct marketers to collect state taxes on mail-order sales. The prohibition costs states more than $3 billion annually, according to the National Governors' Association.
In a case out of New Jersey, the court said states generally may not tax the investment income of multistate businesses. And, citing the Constitution's foreign commerce clause, the high court ruled in an Iowa decision that states cannot tax the dividends paid to domestic corporations by foreign subsidiaries while exempting from taxation dividends paid by domestic subsidiaries.
The court also struck down a discriminatory Alabama tax on the disposal of hazardous waste originating in other states, and said states may not tax military retirement benefits while exempting from taxation the pensions of former state employees.
Other notable defeats for states and localities during the year included decisions in: * Forsyth County, Ga. v. Nationalist Movement. The court said municipalities may not very fees charged for parade permits to reflect the estimated cost of protecting marchers and keeping order. * Department of Energy v. Ohio. The court held that states may not collect punitive damages from federal agencies for violations of federal environmental law. * Lucas v. South Carolina Coastal Council. The Court said states generally must provide compensation to landowners when state regulations render land economically useless.
Richard Samp, chief counsel of the Washington Legal Foundation, a pro-business legal advocacy group, said the court's rulings in the Lucas dispute and tax cases demonstrate "an increasing recognition of individual property rights" and an inclination to protect "interstate companies that may face discriminatory taxes."
But he said the court simultaneously has been "more sympathetic" to states, noting the court's ruling in New York v. United States, a dispute over radioactive waste disposal. In that 6-to-3 ruling, delivered by Justice Sandra Day O'Connor, the court struck down a key provision of a federal law that would have required states to take title to radioactive waste if they did not make other arrangements for its proper disposal.
"State governments are neither regional officers nor administrative agencies of the federal government," Justice O'Connor wrote "The Constitution instead leaves to the several states a residuary and inviolable sovereignty reserved explicitly to the states by the 10th Amendment."
The court, however, stopped short of explicitly overturning a 1985 ruling in Garcia v. San Antonio Metropolitan Transit Authority. In that landmark ruling, the court had said it would no longer entertain federalism challenges to congressional edicts, meaning that states would have to rely on politics and not the courts in fending off any intrusions by Washington on their sovereignty.
The court distinguished the New York case from Garcia by noting that the law challenged by New York applied to states alone, while the law in question in the Garcia case applied to states and everyone else.
Nevertheless, the court's New York ruling, coupled with another opinion by Justice O'Connor last term in a dispute over the federal Age Discrimination in Employment Act of 1967, appears to have sounded the death knell for Garcia.
The ruling "signals that Garcia has been overruled now," Mr. Samp said. "The court is recognizing that states are independent entities with sovereign powers."
He added that the New York decision, when viewed against other opinions during the term, demonstrates that the court has struck a balance between federal and state power.
Mr. Miller of the University of Chicago said, however, that the ruling "was questionable on the merits." As a practical matter, he added, "most states wanted to be forced into coming up with a solution to this very serious national problem" of how to dispose of low-level radioactive waste.
He said Justice O'Connor took "conceptualization to an extreme" in her defense of state autonomy. "It's odd that the court says Congress is prohibited from taking this less intrusive approach, but if it wanted to, it could entirely preempt state law," he said. "It strikes one as ridiculous."
As the court began the 1991-92 term last October, many analysts viewed the court as a conservative monolith. But deep schisms have emerged over the course of the year, reaching perhaps their widest point on Monday, the last day of term, when a splintered court upheld Roe v. Wade, the landmark 1973 ruling protecting abortion rights.
"Clearly, this is a very conservative court," Mr. Rothfeld said. "But it is breaking up into discrete blocs.
Mr. Miller said Justice O'Connor, Justice David H. Souter, and Chief Justice William H. Rehnquist form the nucleus of a conservative, states' rights bloc on the court. But Justice Byron R. White, Justice John Paul Stevens, and Justice Harry A. Blackmun, he said, take a narrower approach to deciding cases, tending to defer to Congress.
Meantime, Mr. Miller added, Justice Antonin Scalia, Justice Clarence Thomas, and, to a somewhat lesser extent, Justice Anthony Kennedy, have embraced a wide-ranging conservative agenda.
Analysts say they do not know what will emerge from this mix of philosophies. Two high-profile cases decided at the end of this term illustrate a court in flux.
In Lee v. Weisman, the court disappointed conservatives with its 6-to-3 decision, written by Justice Kennedy, that it is unconstitutional to have members of the clergy offer prayers at public school graduation ceremonies. Less than a week later, Justice Kennedy joined Justice O'Connor and Justice Souter in Planned Parethood v. Casey, upholding a woman's constitutional right to have an abortion.
Consequently, court watchers said it is difficult to determine how committed the court will be to the principles of federalism.
But one analyst said that commitment may be shallow.
"I think the conservatives, though they talk about federalism, are not willing to sacrifice their values when states get in the war," said Mr. Rothfeld.
In any event, Mr. Rothfeld speculated that the court will issue fewer contentious decisions in the future. He said that, ultimately, the court's solid conservatism will show through. As a consequence, he continued, liberal groups will stop bringing cases to the court and will instead focus their attentions at the state level.
"The abortion case is probably one of the last big cases of its kind that we'll see at the court," he said.