When University lawyers go before the U.S. Supreme Court in four weeks to defend its race-conscious admissions policies, they will argue their case in front of nine justices who have been ruling together longer than any other group since the 1820s. The current panel remains unchanged since Justice Stephen Breyer joined in 1994.

But the Rehnquist court remains unpredictable. While previous courts tended to lean more or less in one political direction, the present court’s cases from the past two terms consist of decisions favoring groups across the entire political spectrum.

The conservative faction of Chief Justice William Rehnquist, Justices Antonin Scalia and Clarence Thomas and the liberal faction of Justices Ruth Bader Ginsburg, John Paul Stevens and Stephen Breyer tend to hold. Justices Sandra Day O’Connor, Anthony Kennedy and David Souter stay more or less in the middle. Kennedy tends to swing right more often and Souter left, and O’Connor’s vote is a gamble.

“There’s no doubt that (O’Connor is) the fifth and critical vote in many areas,” University of Virgina law Prof. A.E. Howard said.

The three centrist justices are often the main targets of plaintiffs and defendants. University lawyers said materials in briefs and oral arguments target the centrists.

“There are some principles that we think will apply to the moderates,” University Assistant General Counsel Jonathan Alger said.

But Northwestern University law Prof. Victor Rosenblum said he is skeptical of stereotyping the justices, saying they do not always vote within their blocs.

“The particular issues in (a) case can often explain more than a prediction of liberalism and conservatism,” Rosenblum said.

In this term, several cases depict the mixed views of the court and O’Connor’s tendency to be the deciding vote.

Yesterday, the court announced its split 5-4 decision in two cases to uphold a California law allowing state legislatures to prescribe long sentences for repeat offenders, even if their latest offense was a relatively minor one.

In one of the cases, Ewing v. California, O’Connor stated her reasoning, noting the plaintiff’s repeated felonies and the 67 percent rate of recidivism in California.

“We do not sit as a ‘superlegislature’ to second-guess these policy choices. It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system in any substantial way,” O’Connor wrote in the majority opinion. “(Gary) Ewing’s sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record.”

Last week, the court decided in Scheidler v. National Organization for Women that NOW cannot sue anti-abortion groups under the Racketeer-Influenced and Corrupt Organizations Act, a law normally used to indict organized crime members. NOW alleged that violent acts and protests in the 1980s by anti-abortion groups cutting off abortion clinic access were similar to extortion.

But by a decision of 8-1 with Stevens dissenting, Rehnquist wrote that the protestors were not extortionists.

“One would have a devil of time trying to explain in terms of liberal and conservative factors how you have (such) a decision with eight justices,” Rosenblum said.

Two other cases decided in the last few months show O’Connor playing a critical role.

In Sattazahn v. Pennsylvania, she cast the deciding vote, siding with the conservative branch to reject a man’s argument that he was being tried for double jeopardy after he had asked for a second trial and received the death penalty.

Last October, along with the same group of justices, O’Connor voted to refuse to reconsider the 1989 Stanford v. Kentucky decision, allowing the execution of 16 and 17 year old juveniles.

But O’Connor and Kennedy have also repeatedly sided with the liberals last year, most notably in Atkins v. Virginia, where in a 6-3 vote, the court declared mentally retarded individuals could not receive the death penalty.

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