The MacNeil/Lehrer NewsHour

MR. MAC NEIL: Good evening. I'm Robert MacNeil in New York.

MR. LEHRER: And I'm Jim Lehrer in Washington. After our summary of the news this Wednesday, four legal experts assess the record and prospects of the current U.S. Supreme Court. Elizabeth Brackett reports on the use of the drug estrogen, and Richard Ostling tells the new story of Buddhism in America. NEWS SUMMARY

MR. MAC NEIL: A Bosnian Serb jet attacked the government-held town of Bihac today, defying NATO's so-called "no-fly" zone. Three rockets hit the Northwestern enclave. Several people were reportedly injured. In Sarajevo, both Serb and Muslim civilians were killed in the latest fighting there. Seventeen people were injured. Meanwhile, the World Health Organization warned today that unsanitary conditions in Sarajevo were increasing the threat of disease. The Serbs cut off water to the city several weeks ago, and UN Secretary General Boutros Boutros Ghali said today a withdrawal of UN troops would only worsen the situation in Bosnia. He said the International Rapid Reaction Force should be fully deployed by the end of the month and would be used to strengthen the existing UN force. Jim.

MR. LEHRER: British Prime Minister John Major reshuffled his cabinet today one day after winning a battle to retain the Conservative Party's leadership. He elevated several supporters, including Defense Sec. Malcolm Rifkind, who was promoted to foreign secretary. Rifkind replaces Douglas Hurd, who already had announced his retirement. Former Trade Sec. Michael Heseltine is now deputy prime minister.

MR. MAC NEIL: Florida Governor Lawton Chiles was hospitalized today with symptoms indicating he may be at risk of a stroke. Doctors believe Chiles suffered a temporary decrease in blood flow to the brain. They said he was in stable condition. Pauline Gore, the 82-year-old mother of Vice President Al Gore, was rushed to hospital in Nashville, Tennessee, today after suffering a heart attack. Late this afternoon, she suffered a stroke and underwent surgery. The Vice President and his wife, Tipper, flew from Washington to be with her.

MR. LEHRER: The Atlantis astronauts prepared for the trip home today. American Norm Thagard and his two Russian colleagues underwent medical tests and exercised on the treadmill. There's concern they may be weak when they return to Earth after nearly four months aboard the Russian space station Mir. The space shuttle Atlantis orbited solo today after separating from the space station yesterday. It's scheduled to land Friday morning. And that's it for the News Summary tonight. Now it's on to the U.S. Supreme Court, estrogen, and the coming of Buddha. FOCUS - JUDICIAL TRENDS

MR. LEHRER: We go first tonight to an end-of-the-term review of the U.S. Supreme Court. The nine Justices have recessed for the summer. They leave behind a year-long trail of decisions that mark the new era for the court. Our look at that begins with a summary of some of those major decisions. Margaret Warner reports.

MARGARET WARNER: In the term just ended, the Supreme Court re- examined a number of basic constitutional principles, from equal protection under the law, the separation of church and state, to the federal government's power versus that of the state. The Supreme Court questioned long held assumptions, and in several cases, the overturned or sharply limited earlier precedent. Two major decisions concerned the authority of the federal government against the rights of the state. One of those, the United States Vs. Lopez, involved Congress's attempt to ban guns in all of the nation's schools. Correspondent Tom Bearden reported on the issue at the time.

TOM BEARDEN: [Nov. 8, 1994] Congress inserted the Gun-Free School Zones Act in the 1990 Crime Control Act. The legislation made possession of a gun with a thousand feet of a school a federal crime, punishable by up to five years' imprisonment and a $5,000 fine. Observers such as George Washington University Law Professor Mary Cheh say power is what this case is all about.

MARY CHEH, George Washington Law School: When Congress passes laws that regulates much of what we do, they do it under the so- called commerce power. And the real question in the case is whether the commerce power is broad enough for Congress to regulate the possession of guns in such a local context.

TOM BEARDEN: Since 1938, almost without exception, the Supreme Court has allowed Congress to broadly interpret the commerce clause, and Congress has used it to desegregate restaurants and public places, for example, and to ban machine guns and assault weapons.

MS. WARNER: In April, the court struck down the Gun-Free School Zones Act by a five to four margin. Chief Justice Rehnquist's majority opinion said the new federal law had nothing to do with commerce or any sort of economic enterprise. Tom Bearden also reported on the second major case involving a struggle between federal and state authorities -- an Arkansas case called U.S. Term Limits, Inc. Vs. Thorton.

TOM BEARDEN: [Nov. 29, 1994] The term limits movement began in Colorado in 1990. Voters approved an initiative limiting the number of terms the state's Congressmen and Senators could serve. Voters in 14 more states approved various term limit measures in the 1992 elections, including Amendment 73 in Arkansas. The initiative was immediately challenged by the League of Women Voters. Elizabeth Robben Murry is an attorney for the Arkansas chapter.

ELIZABETH ROBBEN MURRY, Lawyer, League of Women Voters: The League of Women Voters of Arkansas have a position that they are opposed to term limits philosophically. They believe we already have term limits, which is the right to vote for the candidate of your choice.

MR. BEARDEN: The League's challenge was successful. A trial court and the state supreme court struck down the law. The courts held that only the qualifications listed in the U.S. Constitution could be applied.

MS. WARNER: In May, by a five to four margin, the Supreme Court agreed with the lower court, saying the states could not impose term limits on federal office holders. The court also issued two major decisions in a second area, the relationship between church and state. The first case, brought by a religiously-oriented student magazine at the state-funded University of Virginia, involved the constitutional ban on government support for religion. Richard Ostling, religion correspondent for Time Magazine, did our report.

RICHARD OSTLING, Time Magazine: [March 1, 1995] Former student Ronald Rosenberger, the founder of "Wide Awake," a Christian magazine, is the plaintiff. He wanted money to support the publication. But the student council which allocates funds denied his request. The council uses mandatory student fees to support more than 100 organizations, including 15 independent publications. Rosenberger's request was rejected because university guidelines ban direct funding of religious activity. He says the university's refusal to fund his publication denied his constitutional right to free speech and equal treatment.

RONALD ROSENBERGER, Plaintiff: I feel like we have been discriminated against purely and simply because of our religious viewpoint, and I think that's intolerable.

MS. WARNER: Late last month, the Supreme Court ruled five to four that Rosenberger was right. Justice Kennedy's majority opinion said the university had violated Rosenberger's free speech rights by imposing "a sweeping restriction on student thought" to maintain the separation between church and state. The second church-state case called Capitol Square Review Vs. Pinette involved the state of Ohio's refusal to let the Ku Klux Klan erect a cross in a state park in Columbus. Late last month, the Supreme Court ruled that Ohio had violated the Klan's rights to free speech. The court said the state could not exclude the clan's religious message from a public forum that allowed other private displays. In a third major area, how to remedy race discrimination, the court issued three major rulings. The first case, called Adarand Constructors Vs. Pena, involved affirmative action requirements in the way federal contracts are awarded. Once again, Tom Bearden reported.

TOM BEARDEN: [Jan. 16, 1995] Here in the foothills of the Rocky Mountains just west of Denver Adarand Constructors is installing guard rail. The company's owner, Randy Pech, says he's been getting a lot fewer of those contracts because of a program Congress passed in the 1980's to help socially and economically disadvantaged businesses.

RANDY PECH, Adarand Constructors: We lose jobs on a regular basis and probably on a monthly basis to contractors that are minority- owned, even though we're the low contractor on the job.

MS. WARNER: In June, the Supreme Court agreed with Pech, that the federal government's setaside program for minorities violated his equal protection rights under the Constitution. The second case, Missouri Vs. Jenkins, involved Federal Judge Russell Clark's effort to desegregate Kansas City Public Schools. Again, Correspondent Tom Bearden.

TOM BEARDEN: The place is Kansas City, Missouri. In the 1960's, its public schools went from mostly white to mostly black, and taxpayers stopped approving increases in school spending. By 1977, the whole system was in such bad shape that the American Civil Liberties Union launched a lawsuit on behalf of the students. A long legal battle finally ended when Judge Clark ruled that Kansas City was, in fact, guilty of segregating its schools. Kansas City's unprecedented desegregation plan envisioned a system of stunning new and remodeled magnet or theme schools, a system so special that white students would prefer it to suburban, parochial, or private schools. To help foot the bill, he issued an order raising Kansas City's property tax. Judge Clark also angered state taxpayers when he held them jointly responsible for all desegregation costs, costs which thus far amounted to almost a billion dollars.

MS. WARNER: Late last month, the Supreme Court ruled that Judge Clark could not make state taxpayers fund the showcase desegregation plan. The court's final ruling in this area involved congressional districts designed on the basis of race. At issue in this last case was a racially based election district in Georgia. Correspondent Kwame Holman reported.

KWAME HOLMAN: Election night, 1992. Across the nation, especially in the South, minorities in record numbers were elected to the House of Representatives. In all, twenty-two new minorities, thirteen blacks and nine Hispanics, were elected to the House. Why the big increase? After the 1990 census and prodded by new amendments to the Federal Voting Rights Act, states tried to make it more possible for candidates favored by minority voters to win where they couldn't win before. They drew up more than 50 new congressional districts in which blacks or Hispanics are in the majority.

LANI GUINIER, University of Pennsylvania: The assumption was that the way you remedy vote dilution, the way that you empower a minority to elect representatives of its choice is to give that minority its own safe seat.

MS. WARNER: On the last day of the term, the Supreme Court ruled in favor of white voters who had challenged Georgia's state redistricting plan. The court said that using race as a predominant factor in designing election districts violated the Constitution's equal protection clause. Ruling in the majority on this issue were the same five Justices who had struck down other race discrimination remedies in the Adarand Construction and Kansas City School Desegregation cases.

MR. LEHRER: Now, four legal analysts give their assessments of what this court is and is not doing. Eugene Vohlok is a professor of constitutional law at UCLA Law School, he's a former law clerk to Supreme Court Justice Sandra Day O'Connor. Kathleen Sullivan is a professor of constitutional law at Stanford University. Ted Olson is a Washington lawyer, a former Reagan administration Justice Department official. Frank Parker is a law professor at the University of the District of Columbia and author of Black Votes Count, A Defense of Black Majority Voting Districts. Kathleen Sullivan, how would you describe what this court has done overall this term?

KATHLEEN SULLIVAN, Stanford University Law School: [Stanford] Well, this year's court came the closest of any in the last 15 years to being the kind of court President Reagan wanted to see in the 1980 election, a court that lowers the wall of separation between church and state, a court that throws back federal power from Washington to the states, and a court that most strikingly of all tries to eliminate affirmative action or racial preferences from economic and voting law. Most strikingly, the court took a sharp turn to the right this term in the race and the religion cases. In race, the court tried to get all three branches of the federal government out of the business of race preferences. It told the Justice Department it can't have race conscious voting districts. It told Congress it has to sharply reduce the role of race preferences in the awarding of federal contracts, and it told the federal courts that it's time to get out of the business of forced integration of the schools, even in areas where there was previously segregation by law. In the area of religion too, there was a sharp turn to the right. On the last day of the term, the court really for the first time ever said that we can force the state to pay for religious evangelism. The University of Virginia was told it had to give a subsidy to a magazine that said God is your pilot, and you need His ticket to get to heaven. In the past, the court had allowed some subsidies for religious schools. It had said you could pay the bus driver to get the schoolchildren to those schools, but it had never before this term said that government can pay the preacher, himself, to preach. The sharp turn to the right in race and religion was echoed by a wide turn to the right on federalism. The court has hinted that it might start helping to throw back power from the federal government to the state to dismantle not only the new society begun by Presidents Kennedy and Johnson on race but perhaps even to dismantle someday the New Deal, which centralized power in Congress to regulate the nation's economy. So President Reagan would have been pleased.

MR. LEHRER: Mr. Olson, you worked for President Reagan. Would you agree that President Reagan would be pleased with what this court has done this last term?

TED OLSON, Former Reagan Administration Official: Well, I know that President Reagan would be pleased by some of the things the court has done. I do not agree with Professor Sullivan that this was a sharp turn to the right or a wide turn to the right. The court makes decisions on an incremental basis and decides cases, the cases that are before them. The case involving the student publication at the University of Virginia, for example, was a situation where the university through student fees helped funds - - helped fund all sorts of expression. And the Supreme Court basically said that you cannot discriminate against religious expression by excluding that as the only type of expression that wouldn't be eligible to these fees. With respect to the cases involving a preferential treatment on the basis of race, I'm quite confident that President Reagan would be comfortable with these decisions. In fact, most of the Supreme Court has been uncomfortable for a long time with the notion that government decisions or government preferences should be made on the basis of the color of an individual's skin. This is not a sharp turn to the right. This is an incremental step based upon principles that have been with us for a long time that governmental decisions and individual decisions where government funding is involved should not be based on the color of a person's skin.

MR. LEHRER: So you -- you would agree that it's -- that the court is turning to the right, though? I mean, this is a conservative court. This is what President Reagan had in mind. It didn't come in his -- during his term as President -- is that --

MR. OLSON: Well, the court has turned to the right, if you could say -- you have to look at what the Supreme Court does on a case- by-case basis. In many respects, civil libertarians and people that are believers in freedom of speech won cases this year. The Supreme Court constitutionalized, to the surprise of many people, a knock and announce requirement when an arrest warrant is being executed. Civil libertarians are very happy about that. With respect to the burning of the cross by the Ku Klux Klan, I disagree with your commentator that it's a religion case. And I agree with Justice Thomas it was a -- the cross is a political expression. Those were civil libertarian decisions. There is a -- a block on the court that some people perceive as right, basically consisting of the Chief Justice, Justices Scalia and Thomas, there's a relatively firm block that some people perceive that's on the left; Justices Ginsburg and Breyer and Justice Souter and Justice Stevens, and Justice Kennedy and Justice O'Connor are very much in the center, very moderating voices, very carefully selecting their decisions on the basis of the particular issues before them and making clear that the decisions that the court is making are relatively narrow.

MR. LEHRER: All right. I'm going to come back to that in a moment. Mr. Parker, how would you characterize what this court is up to?

FRANK R. PARKER, District of Columbia Law School: Well, I think we have to distinguish between conservatism and judicial conservatism. Politically, the court's been very conservative. Judicially, it's not been conservative at all. It's been an activist court. In handing down these decisions, it's overruled many, many precedents and struck out in new areas quite surprisingly. In the Lopez case, the court overruled 60 years of Supreme Court precedent, sustaining Congress's power under the commerce clause. In the Adarand case, the Supreme Court overruled - -

MR. LEHRER: Now, Adarand was an affirmative action case.

MR. PARKER: Adarand was an affirmative action case.

MR. LEHRER: That was the one in Colorado.

MR. PARKER: The one in Colorado. The court overruled Metro Broadcasting Vs. FCC, which affirmed Congress's power to pass legislation using racial preferences to promote to diversity, so from a judicial point of view, the court has been very activist, has departed from prior precedents, and has gone out of its way to make things harder for minorities.

MR. LEHRER: When you use the word "activist," activist is a term that's been around, well, among laypeople at least, talking about the Supreme Court, since the Warren court. How do you use the term? When you say activist, what do you mean?

MR. PARKER: Well, the general description of judicial activism is departing from past precedent, and if you look at practically all the cases under discussion, you'll see that in one way or another the court has either overruled or restricted prior decisions to establish new rules of law. Now, that, to me, is an activist court. It's not sticking with the tradition of Supreme Court decisions. It's striking out into new territory, into uncharted waters.

MR. LEHRER: And on -- in a conservative line, you mean? In other words, it's --

MR. PARKER: Politically conservative.

MR. LEHRER: -- overruling what you would consider to be liberal in general terms, liberal decisions, overruling -- overturning those and with conservative decisions, and that is your version - - that is your definition of activism.

MR. PARKER: The decisions are politically conservative, but judicially they're activist in that they're striking out into new areas and laying down new legal rules.

MR. LEHRER: Mr. Vohlok, how would you characterize the general scope of what -- what the court has done this term? EUGENE VOHLOK, UCLA Law School: [Los Angeles] Well, this court is generally called the Rehnquist court because Rehnquist is the Chief Justice, but it really, in some respects, would convey more information to call it the O'Connor-Kennedy court. This is a court of the center right, and it's firmly in the center right. You look at a lot of these cases. You look at the religion cases, for example. The court didn't hold that the government should prefer religion. All the court said is it can't discriminate against religion, just as earlier on in certain cases over the last few terms it said it can't discriminate in favor of religion.

MR. LEHRER: Explain the difference there.

MR. VOHLOK: Well, let's look at what's going on in Rosenberger or in Capitol Square.

MR. LEHRER: The Rosenberger case was the, the University of Virginia case.

MR. VOHLOK: Exactly.

MR. LEHRER: Right.

MR. VOHLOK: The court was saying, look, you have to treat religious speakers equally, just as under the free speech clause you generally have to treat speakers equally. You can't discriminate against Communist speakers. You can't discriminate against racist speakers, against Democrat speakers, Republican speakers. Well, you can't discriminate against religious speakers either, nor can you discriminate in their favor. There are quite a few cases over the past few years where the court has refused to allow the government to discriminate in favor of a religion. So this is a center right agenda of equal treatment for religion, rather than preferences for religion, something similar in the federalism context, that the court went to a certain extent in Lopez to restrict the federal government's power but not that far. And Justice Thomas --

MR. LEHRER: Again tell us about the Lopez case. When you mention these names of these cases, all of us don't remember them.

MR. VOHLOK: So sorry. That was the case with the Gun-Free School Zones Act.

MR. LEHRER: Right.

MR. VOHLOK: Justice Thomas, who actually -- one of the most interesting developments this term is he's coming out as a very articulate and intelligent and thoughtful voice, one that it's easy to disagree with -- lots of people do; I do to some extent -- but very much worth listening to. He would have suggested that the court go further and restrict federal power even further. O'Connor and Kennedy in their separate opinion made it clear that's not so, that they wouldn't sign onto that. That's a center right position. It's true. It's going off a little bit to the more conservative than the thrust of some decisions, although in a lot of these cases, it has to really choose between two competing lines of decisions, rather than just departing from the previous course of decisions, there are several courses which are sometimes in conflict in the race and the religious context. And it has to decide. And often it is choosing the one that kind of hues more to its center right philosophy.

MR. LEHRER: Is it oversimplifying things to say that if you happen to be in the -- whether you're in the liberal wing or -- using Mr. Olson's description, that puts Kennedy the same way you did, puts Kennedy and O'Connor in the middle, that if you're in the liberal wing and you want to win, you've got to get -- you've got to get Kennedy and O'Connor on your side -- in other words, if you're in the Rehnquist wing as well, you have to get Kennedy and/or O'Connor with you, or you're going to lose too, is that right?

MR. VOHLOK: Absolutely. O'Connor and Kennedy are the key swing votes, and we've seen cases here where the liberals got 'em, or got at least one of 'em.

MR. LEHRER: Where did they get 'em? Give me an example of where the liberals got Kennedy and O'Connor.

MR. VOHLOK: Well, the term limits case, they got Kennedy but not O'Connor.

MR. LEHRER: Okay.

MR. VOHLOK: In the endangered species case --

MR. LEHRER: That's right. That was last week.

MR. VOHLOK: -- they got O'Connor and Kennedy.

MR. LEHRER: That was six to three in favor of affirming the Endangered Species Act.

MR. VOHLOK: Exactly.

MR. LEHRER: Yeah.

MR. VOHLOK: And in some of the death penalty cases, you had Kennedy, Rehnquist, Thomas, and Scalia in the dissent, and the liberals plus O'Connor in the majority. And again, it just shows the power those two Justices have on a court that's broken down this way.

MR. LEHRER: Kathleen Sullivan, where do you come down on the Kennedy-O'Connor role?

MS. SULLIVAN: I agree that Kennedy and O'Connor are the balance wheel of the court. There's no question about it. Lawyers have to write their briefs as kind of sonnets to Kennedy and O'Connor now. I agree --

MR. LEHRER: Is that unusual for two, two members of nine -- two out of nine members of the Supreme Court -- to wield that much power at any given time?

MS. SULLIVAN: We've seen it before. Justice Powell held exactly that kind of swing vote power in the Burger court in the late 70's and early 80's, and he was the swing vote in so many five/four cases on affirmative action, church-state, abortion, and so forth during that era. So now Kennedy and O'Connor are repeating that role, and they do reserve their right to swing a little bit more left if the court goes too far right, just as this term they swung a little bit right when they may have perceived the court was going too far left. There's no question that they hold the swing vote. If I could just add, though, to Mr. Parker's discussion of judicial activism, I agree that this was an act of this court not only because it overturned precedence, but also because it was quite willing to strike down the work of the political branches. You remember, we used to hear during the 1980 election campaign that a lot of conservatives thought judges shouldn't legislate from the bench. That means they should respect the will of the political majority. But it's quite striking this term how often the court was willing to stop the political majority from having its way, to tell Georgia it couldn't create safe black districts, to tell the University of Virginia it had to subsidize religious speech, to tell Congress it couldn't have affirmative action and so forth. And I have to disagree with Mr. Vohlok that all the court did here was treat religion equally. The Constitution says religion is different, you can't establish any kind of national religion.

MR. LEHRER: Let me get -- Mr. Olson was shaking his head vehemently when you were talking about activism. Mr. Olson, why were you shaking your head?

MR. OLSON: Well, I think the answer to that is that people use the word activist to denigrate a court whose decisions they do not like. The Warren court and -- and the liberal courts of the past -- struck down more laws and overturned more precedents than the Rehnquist court has ever even come close to doing. In the Lopez case, which is the commerce cause, the Gun-Free School Zone Act, what Congress, what the Supreme Court basically said is that there must be some nexus between interstate commerce and the actions of the federal government in prohibiting some activity. Otherwise, the federal government can take over all the police power, and the states are left with no power at all. The Constitution articulates limited powers. The Supreme Court said here where Congress failed to articulate any connection between the gun and the crime that the individual is being charged with and interstate commerce, Congress has gone too far. This is a relatively limited decision and does not inhibit the political branches at all. Of course, the Supreme Court and people on the other side of the political spectrum have always expected -- we all expect the Supreme Court to act as a check on the political branches where the Constitution provides limits.

MR. LEHRER: Mr. Parker, Mr. Olson's right to some degree, is he not? In other words, an activist court is, is an activist court when it overthrows something that you like, whoever you is at any given time, no?

MR. PARKER: No. I think there are objective measures. I agree with what Prof. Sullivan said. You can look and see the extent to which the court is overruling prior precedents. You can look and see whether the court is violating its own federalist principles or separation of power of principles by intervening in Congress and state legislatures.

MR. LEHRER: What about the point, though, that the Warren court did the same thing as a liberal court, was an activist court, did the same thing when it, it came up with liberal decisions?

MR. PARKER: Well, let me use the example Mr. Olson gave, the Lopez case.

MR. LEHRER: All right.

MR. PARKER: This is 60 years of precedent. The court has not struck down -- consistently has not struck down --

MR. LEHRER: This is guns in schools.

MR. PARKER: This is guns in schools. Congress's power under the commerce clause to ban guns within school zones. The Supreme Court has a consistent line of decisions for the past 60 years, since 1937, sustaining Congress's power under the commerce clause to enact a wide variety of legislation. The Warren court didn't change that. It's the Rehnquist court that is now stepping in. We thought those battles had already had been fought. We thought the battles were over, and the Rehnquist court is now raising once again the same kinds of issues that were raised in 1936-37. Now, that's going back a long time.

MR. LEHRER: Mr. Parker, I want to get your view on -- you call it the Rehnquist court, but some folks here are calling it the O'Connor-Kennedy court. Do you agree with that?

MR. PARKER: Well, they're the swing votes. I mean, you look at the statistics. There were 16 five-four decisions.

MR. LEHRER: Sixteen five-four decisions.

MR. PARKER: Kennedy was in the majority 13 of those 16 decisions, and O'Connor was in the majority in 11 of those 16 decisions. So they're pretty much the decision makers. They're the ones who decide which way the court is going to go. And in most of these cases, they've gone with the Rehnquist group.

MR. LEHRER: Most of the cases they have.

MR. PARKER: Yes.

MR. LEHRER: Most of the time. Mr. Vohlok, is it your feeling that, that Justices O'Connor and Kennedy are aware of the power they are now exercising in this country?

MR. VOHLOK: Well, I think they have to be aware of it. I don't think that it influences their judgment that much. I think they look at each case on the terms that come before it.

MR. LEHRER: How could they not be -- I mean, just in personal, you know, human terms, if they realize that everybody is going at 'em all the time and realize they got to -- in other words, the conservatives can't win without them, the liberals can't win without 'em, how could they just as human beings not being susceptible to that -- that kind of -- I'm not saying pressure -- I don't know what the word -- you give me the word.

MR. VOHLOK: Well, I'll tell you they are aware of it. I think, I think they are pretty strong, solid people that realize that they took an oath to decide each case based on what they think are the merits. And I don't think they say, oh, yes, well, we have all the power, let's -- I don't know -- horse trade with somebody or, or do something else inappropriate. I think they take their responsibility seriously, and they recognize that they have to sometimes build bridges to other members of the court. They recognize that their position is very important and perhaps take - - put in a lot more thought into it in certain contexts, but I don't think there is anything that they are getting drunk on all this, and it seems to me they're very -- they're very smart and can change as people. I don't think that's a problem.

MR. LEHRER: Kathleen Sullivan, should we laypeople be concerned that there are so many decisions that are so important that are being resolved five to four?

MS. SULLIVAN: Well, it's not a new thing. We've really seen most of the most divisive issues and constitutional law decided by narrow majorities for a generation now, and this court is continuing the trend. It's just that the five to four votes are going more often for the political right. But Justices Kennedy and O'Connor -- let's bear in mind that they may produce different outcomes next year. For example, in race conscious districting, Justice O'Connor wrote separately in that Georgia district case to say maybe the door is still open for some race consciousness and districting. Maybe she would vote for Texas or North Carolina or Louisiana districts next year, even though she thought that the Georgia district was too race conscious this year. Similarly, Justice Kennedy has been on both sides of the church-state debate. He wrote an opinion for the court several terms ago striking down prayer at a school graduation. So the fact that he was willing to uphold religious subsidies to the Christian magazine this term doesn't mean he'll always vote for the church side of the church- state debate. So we'll see next year whether they balance the court back the other way.

MR. LEHRER: Mr. Olson, do you agree that it's too early to proclaim a judgment on this court?

MR. OLSON: It very definitely is. I agree with Prof. Sullivan with respect to that. We're going to have to see what happens next year. I think it's important to realize that the selecting of the cases that will be heard is where a key part of what the Supreme Court does is done. They had last year -- the court had 7,161 petitions. They accepted and heard 82 cases for argument. That's barely over 1 percent. So the selection of what cases will be heard and where the court is going is a very important part of it. And I agree that it's going to be very interesting to see what cases are selected for next year. They've selected 34 already. They will select more in October, when they return, and then we'll see where it's going.

MR. LEHRER: All right. And we will too. And thank you, all four, very much.

MR. MAC NEIL: Still to come, the use of estrogen and Buddhism in America. FOCUS - A WONDER DRUG?

MR. MAC NEIL: Next, the continuing debate about the benefits and the risks of estrogen therapy. Elizabeth Brackett of public station WTTW in Chicago reports.

ELIZABETH BRACKETT, WTTW: Pills that contain estrogen are the number one selling prescription in America. The pills or patches which contain the hormone are taken by an estimated 6 million women. They take it because they are undergoing menopause, a time when the body's own estrogen supply, which kicked in at puberty, kicks off. The loss of estrogen causes significant hormonal changes in the body. Dr. Lauren Streicher practices obstetrics and gynecology in Chicago. About half of her patients are menopausal women. Women can now expect to live 1/3 of their lives post menopausal, and that raises the stakes in whether or not to replace hormones the body no longer produces.

DR. LAUREN STREICHER, Obstetrician/Gynecologist: Women are always saying when they come in for their -- for their regular visit, what's new, what do we know now that we didn't know last year, is it still okay for me to take estrogen? That's the question I get again and again and again: I'm on estrogen; you told me it was the right thing to do; is it still the right thing to do?

MS.BRACKETT: We gathered a group of women, many of them Dr. Streicher's patients, who had lots of questions about hormone replacement therapy, though most said they started taking hormones because they made them feel better.

MARY ANN GUGINO: Most important to me was the sleep deprivation as a result of hot flashes, and I really need my sleep. And that prompted me to try this. And I have just felt wonderful ever since.

JANICE BAILEY: I think I took it because I was very uncomfortable, not being able to sleep and sweating all the time, and just basically being nervous and crazy. And that was why I went on it.

MS. BRACKETT: But while psychiatrist Dr. Nada Stotland recognizes the benefits of relieving menopausal symptoms, she worries that doctors prescribe hormone replacement too freely.

DR. NADA STOTLAND, Psychiatrist: They think it's the greatest thing since sliced bread.

MS. BRACKETT: Why?

DR. NADA STOTLAND: Well, they're being portrayed as a fount of eternal youth. They do relieve symptoms, and the symptoms can be vexing for people. People don't really know any other way to get around the symptoms, and they really don't know whether they would go away by themselves. There's very little sort of information out on the streets about that, and, and they've been very pushed by both the medical and the pharmacologic industries, communities.

MS. BRACKETT: Dr. Leon Speroff is a professor of obstetrics and gynecology at Oregon Health Sciences University. He says one reason OB/GYN's generally favor hormone replacement therapy is because of the long-term health benefits that have been discovered in recent years.

DR. LEON SPEROFF, Obstetrician/Gynecologist: For many years, the focus was on short-term use for symptoms, hot flashes, vaginal dryness, and so forth. Now, there's been a shift to long-term use, and that's because we now understand that long- term use protects against cardiovascular disease, fractures due to osteoporosis, genital urinary atrophy, and stress incontinence. And we're very excited about preliminary data that suggests that it may protect against Alzheimer's Disease. So that's a very big change from short-term to long-term.

MS. BRACKETT: But along with the benefits, there are also risks. A study just published in the New England Journal of Medicine reported on the risk women fear most, breast cancer. The long-term Nurses Health Study has followed 121,000 female nurses since 1976. Lead study author, Dr. Graham Colditz, says the study found that adding progestins to estrogen did not reduce the risk for breast cancer, as they had for uterine cancer. Instead, the study found a clear link between breast cancer and estrogen, particularly when hormones were used for five years or more.

DR. GRAHAM COLDITZ, Study Author: Well, we analyzed data from the Nurses Health Study with just under 2,000 cases of breast cancer among postmenopausal women, and we see that women using postmenopausal hormones for five or more years are at significantly increased risk of breast cancer, and in particular, this risk is greater in the older participants in our study so women over age 60 who continue to use hormones after five years have a 70 percent increase in risk of breast cancer, compared to women of the same age and same age at menopause who have never used postmenopausal hormones.

MS. BRACKETT: But Colditz says the data is not as ominous as it sounds.

DR. GRAHAM COLDITZ: This is about the same magnitude of risk as we see with family history in this population. So, in fact, for breast cancer there isn't a risk factor like smoking for lung cancer, where you get a tenfold difference.

MS. BRACKETT: The study was widely reported, and the headlines scared and confused many women.

SANDRA NECHIPOR: I picked up the phone on Monday morning and called Dr. Streicher after hearing all the hype in the media last week, and we're going to discuss it. She recommended that if I feel strongly enough, that I, that I stop taking it for a while and test it out and see what happens.

HEDY RATNER: The risks that I'm dealing with, I think, are my fears of cancer. Though breast cancer is not in my family, uterine cancer is not in my family, I've seen the effects of ovarian and uterine cancer on friends. It's a terrible experience. It's a terrible death, and I'm very concerned about it.

MS. BRACKETT: Since one in eight American women have a lifetime probability of developing breast cancer, early detection is critical, so is knowledge, and part of the confusion surrounding the link between breast cancer and hormones is that there have been more than 40 other studies prior to the latest results from the nurses study. A glance at the outcome show the results have been totally contradictory. Half say there is a link; half say there isn't. [ON SCREEN: Hormone Therapy and Breast Cancer: Sweden Study - Increased Risk - Yes; Cancer & Sex Hormone Study - Increased Risk - No; Nurses Health Study - Increased Risk - Yes; Australian Study - Increased Risk - No; Eastern U.S. Study - Increased Risk - No; Spain Meta-Analysis - Increased Risk - Yes.]

DR. LEON SPEROFF: Despite more than 40 studies, there still is no agreement. I think that that is the strongest conclusion you can make, that there is no agreement. I tell my patients that in the absence of agreement, in the absence of uniformity and consistency of the data, this means that there is no definitive evidence linking postmenopausal estrogen to an increased risk of breast cancer.

MS. BRACKETT: But Dr. Colditz argues that the Nurses Health Study does give definitive data, particularly in terms of mortality rates.

DR. GRAHAM COLDITZ: For the first time, we've been able to look at the mortality from breast cancer, and in this cohort, we see that the women who are diagnosed with breast cancer die from their breast cancer, unfortunately, so that the elevation in risk translates also into an elevation in mortality.

MS. BRACKETT: Does it make sense?

DR. GRAHAM COLDITZ: Well, it makes sense, but at one time there again was this thought that maybe the breast cancer diagnosed among women taking hormones was less invasive, less aggressive, and so maybe it didn't matter so much. Well, clearly, it's not trivial breast cancer; it's real breast cancer. And the women do go on to die.

MS. BRACKETT: Critics say the problem with all the studies to date, including the Nurses Health Study, is that they are observational studies, studies that cannot control for all variables.

DR. LEON SPEROFF: The Nurses Health Study concluded that current long-term users of estrogen have an increased risk of breast cancer. Look at the current users more closely. They are different than the non-users. They have more benign breast disease. They have an earlier menarche. They have a different body size. They have fewer pregnancies. They have more mammograms. Now, one of those things would not explain the magnitude of the conclusion, but what if you add 'em all up? All of them influence the risk of breast cancer. So there's an excellent example of how a very good observational study is still not free of potential biases. That's why it is not definitive.

MS. BRACKETT: There is a study in the works which promises to be the most definitive to date. The Women's Health Initiative was launched two years ago by the National Institutes of Health. There are 40 centers across the country which hope to eventually enroll 27,000 women in the study. One of those studies is here at the Northwestern University School of Medicine in Chicago.

HEALTH CARE WORKER: [talking to woman] There is a 50 percent chance that you will receive the placebo, and there is a 50 percent chance that you will receive the hormone.

MS. BRACKETT: The Women's Health Initiative will be the first randomized clinical trial designed to study the impact of hormone replacement therapy on breast cancer. For the next 10 years, half the women in the study will be given a daily pill that contains estrogen and half will be given a placebo, a similar-looking pill but does not contain hormones. Dr. Philip Greenland directs the study in Chicago.

DR. PHILIP GREENLAND, Women's Health Initiative: The previous studies have been inconclusive. They've been what we call observational studies.

MS. BRACKETT: So do you think at the end of 10 years you'll know definitively whether or not hormone replacement causes breast cancer?

DR. PHILIP GREENLAND: I'm quite sure we'll know that. I'm quite sure we'll know that, because the numbers in this study are large enough. We should be able to say very precisely what the risk of breast cancer is and how much that risk exceeds the risk if a woman were not on the treatment.

MS. BRACKETT: But those results won't be available until the year 2005. What are women supposed to do in the meantime? Author Gail Sheehy wrote about that question in her 1991 book on menopause, The Silent Passage. There, and in her latest book, New Passages, Sheehy says each woman must do her homework.

GAIL SHEEHY, Author: It's a totally custom-designed approach we have to take. We have to really do research and understand our own risk profile. That means as you get to your mid 40's, you really need to investigate your mother, your sister's history, you need to know what the heart disease, what the breast cancer risk, and what the osteoporosis risk is in your family. We also have to become little scientists on our own because we can't take a "one size fits all" remedy.

MS. BRACKETT: Now, many women take hormones to help prevent osteoporosis and heart disease, the No. 1 killer of women. But some doctors say women should be looking to exercise and diet to help prevent those conditions, that hormones should go back to being a short-term solution to menopausal symptoms. But it's not an easy decision, so many women will be doing what Sandra Nechipor is doing.

SANDRA NECHIPOR: I'm going to have further conversation with Dr. Streicher and she and I will have, I think, a very lengthy visit very soon before I make my final decision. FINALLY - EAST MEETS WEST

MR. LEHRER: Finally tonight, a look at one of the world's great religions that is beginning to gain a foothold in this country. Richard Ostling, religion correspondent for Time Magazine, reports.

RICHARD OSTLING: Each morning, members of Green Gulch meet to meditate. At this Zen Buddhist community North of San Francisco, there are several such sitting meditations every day. Forty people live in the community. Others come on weekends or when their work days permit. Following ancient practice that originated in Japan, these American Buddhists meditated in total science for 40 minutes without moving a muscle. The group then joined in a traditional chant that conveys the heart of Buddhist teaching, the ideal of spiritual self-extinction. [people chanting] The devotees at Green Gulch are part of a quiet nationwide Buddhist boom that they say rejects the materialism, individualism, and aggression that are so much a part of American culture. Jack Kornfield is a leader in the first generation of American-born teachers.

JACK KORNFIELD, Buddhist Teacher: I think the fact that Buddhist practice contrasts with American culture is its appeal. If we look at our lives, they are so fast or so complicated or in some cases, we get lost in materialistic ways. There's some longing for some other, and so the fact of Buddhist teachings of simplicity, of inner stillness, of reflection and meditation, themselves, are what draw people.

MR. OSTLING: Buddhism was founded six centuries before Christ by Gautama, known as the Buddha, meaning "the awakened one." It ranks fourth in size among the world's religions, behind Christianity, Islam, and Hinduism. The ancient faith was first brought to America more than a century ago by immigrants from Asia. Today there are at least 5 million Asian-Americans of Buddhist background, but in the last 40 years, Buddhism has gone beyond the Asian community. The faith's traveling superstar, the Dalai Lama, exiled ruler of Tibet and winner of the Nobel Peace Prize, has attracted interest through his American visits. An estimated 400,000 Americans from Christian, Jewish, and secular backgrounds have converted to Buddhism. They started coming to the religion in the 1960's, attracted both by Buddhism's strict anti-war stance and by its use of meditation, which was seen as a natural high, an alternative to drugs. Like Protestantism, Buddhism takes many forms. One which made the transition to America is Sokka Gakkai, whose followers repeatedly chant four Japanese words in order to obtain spiritual and material benefits. The discipline has attracted mostly African- Americans and working class whites. Middle class whites, for the most part, have been drawn to a radically different style of Buddhism which focuses on silent meditation and the ultimate goal known as Nirvana. Unlike the Christian concept of heaven, Nirvana is a state where desire, suffering, and individual consciousness are extinguished. Don Flaxman meditates daily at home seated in a rocking chair. As a stockbroker, he spent his career in the practical world of money making. Flaxman, who was raised Jewish, was thinking of quitting his job and dropping out in 1976 when he attended his first retreat in the practice known as insight meditation. The impact was immediate.

DON FLAXMAN, Stockbroker: Just by being there and being present, I started to see things that I had never seen before. And so although I didn't like it, I knew I was staring at the truth, just seeing how agitated I was and how restless and how much I needed distractions, and starting to notice that I was addicted to the hustle of my usual life and all of those kinds of things.

MR. OSTLING: Flaxman says meditation forced him to confront his own desire for money. It also made his work more fulfilling.

DON FLAXMAN: Fifteen years ago, I saw my job as one of managing money, and the client was just the person for whom I did this. But my, my focus was on managing the money. Today, my focus is on the client, the client's needs, much more attention to what does the client really want, what does the client really need?

JACK KORNFIELD: Feel the natural rhythm in the nose or throat, the chest, or belly, and use that as a way to connect the mind and body together.

MR. OSTLING: Flaxman studies with teacher Kornfield, whose weekly meditation class at Spirit Rock Center in California, often draws 200 people. Kornfield says meditation attracts career-minded Americans who want a practical method to find inner peace.

JACK KORNFIELD: We find our lives through the amount of time we spend in the automobiles, answering machines, the complexity of our lives, almost out of control, and there is a refreshing simplicity to the meditation. When people come to practice, it's as if they can say, ah, here's finally a place where I can just listen to my heart, here's finally a place where I can be still.

MR. OSTLING: Some converts, like Nancy Schroeder, now a priest with the Buddhist name of Furyu, wanted to be submerged more completely in the practice. Furyu lives and works full-time in the Green Gulch community. She rebelled against the dos and don'ts of her Episcopal upbringing, joined the 1960's counter-culture, and then turned to Zen Buddhism.

FURYU, Buddhist Priest: At some point in my meditation I began to kind of review my behavior in a way. It would come forward while I was sitting, and sometimes we say it's like you kind of turn the garbage disposal on backwards and all the stuff that you'd stuffed down there became really clear. And I didn't feel so good about how I was behaving, but it took a while to kind of begin to appreciate that my behavior was also what was causing my suffering.

MR. OSTLING: Skeptics might look upon meditation as the height of self-centeredness, but many who are drawn to Buddhism claim that meditation ultimately leads the believer away from the self toward connection with others. Robert Thurman, a Buddhist and one-time Presbyterian, who teaches religion at Columbia University, says the faith offers an effective way for each person to make that connection.

ROBERT THURMAN, Buddhist Scholar: If you look at western religions, their teaching -- biblical religions -- their main teaching is the teaching of compassion and love and more ethical behavior, do unto others, and all this sort of thing. Then they don't have a very strong psychology to back it up. They'll just order you, love your neighbor. In fact, you can't stand your neighbor. Then as you go to the western psychology people, they say, oh, your unconscious hates your neighbor. If you try to love it, you're going to suppress yourself, and it will be terrible, and those religions are unrealistic. This is where Buddhism can offer, I feel, great service to, to the modern society, is by providing a huge repertoire of technique and of insight and of how to recondition the mind.

[SINGING]

MR. OSTLING: Father David Steindl-Rast, a Catholic monk who has used Buddhist techniques for decades, finds a spiritual kinship between Christianity and Buddhism, including the experience of the divine. He says Buddhist practice is similar to the Christian contemplative tradition and believes genuine morality flows from meditation, from within.

BROTHER DAVID STEINDL, Catholic Monk: You don't focus on the dos and don'ts. In our meditative practice, we experience this wholeness, this attuning to the forces of nature, to the flow of nature, and the moral life is simply the living out of this attunement in ourselves, in the relationship to nature and the relationship to society.

MR. OSTLING: Steindl-Rast thinks modern Americans can learn from the habits of Buddhist monks.

BROTHER DAVID STEINDL: Before taking a cup of tea, they will bow, they will bow to one another, they will bow -- they will even bow before they go to the toilet. As they are going into the toilet, they will bow, and as they come out, they will bow in gratefulness that everything went well. It's totally pervading their everyday life, and this gratefulness is, of course, something that's so important, would be so important for us to learn, because the more affluent we become, the less grateful we are, the more we need and think we need, wants become needs, and the less we are grateful for, and gratefulness is not cultivated.

MR. OSTLING: While Steindl-Rast sees similarities between Christianity and Buddhism, Pope John Paul emphasizes the differences in his current best-selling book [Crossing the Threshold of Hope]. The Pope warns against a Buddhist view of salvation, saying that in Buddhism, "We liberate ourselves only through detachment from the world which is bad." "For Christians, the world is God's creation, redeemed by Christ. It is in the world that man meets God." Buddhism also does not affirm the existence of the personal God as worshipped by Christians and Jews.

JACK KORNFIELD: God isn't talked about either way by the Buddha. Rather, what's talked about is that which is sacred is that great creative energy or the creative force or power out of which all things arise, and the laws that we follow, the laws of ethics and the laws of the universe that are the natural laws of this creative power that bring harmony in our lives, if you want to call that God, I suppose you could.

MR. OSTLING: Despite its differences with familiar American religions, Buddhism has grown mostly because centers like that run by Kornfield have worked to make religion less foreign.

JACK KORNFIELD: When we started as American teachers twenty or twenty-five years ago, we left behind the robes and bowls, the Monastic practices, most of the chants and other languages, and kept our shoes on in some places or sat in chairs, meditated in ways that were really familiar to American people, and used that to take them then to a new inner experience without the outer form being unfamiliar.

MR. OSTLING: Freed from the cultural restrictions that rule Asian Buddhism, the American version has allowed women to be leaders. One of the most important women in American Buddhism today is Helen Tworkov, editor of "Tricycle," a stylish Buddhist magazine. Tworkov, a New Yorker who came from a Jewish background meditates daily with her staff. She says American Buddhists are forming a faith free of the cultural trappings and religious bureaucracy found in Asian countries.

HELEN TWORKOV, Editor, Tricycle: We are applying various aspects of democratic process to situations in this country where previously the authority was totally with one person.

MR. OSTLING: Last summer, in order to spread interest in American Buddhism, Tworkov's magazine sponsored an outdoor festival in New York's Central Park.

HELEN TWORKOV: So if you have questions about particular types of meditation, Zenn meditation, Therevada meditation, Tibetan --

MR. OSTLING: A variety of teachers invited hundreds of curiosity seekers to join in. And beat poet Allen Ginsberg, a long-time Buddhist, entertained the crowd.

ALLEN GINSBERG: [singing] If you are an old fraud like me or a lama who lives in eternity, the first thing you do when you meditate is keep your spine, your back bone straight. Sit yourself down on a pillow on the ground or sit in a chair if the ground isn't there.

MR. OSTLING: The Buddhism of Central Park is a long way from the Buddhism of Asia. The American converts are continually altering the traditions they inherited from Asia, creating in the process what could emerge as a new branch of an ancient religion. RECAP

MR. MAC NEIL: Again, the major stories of this Wednesday, the Bosnian Serbs defied NATO's no-fly zone by bombing the town of Bihac. British Prime Minister John Major reshuffled his cabinet promoting Defense Sec. Malcolm Rifkind to foreign secretary. Good night, Jim.

MR. LEHRER: Good night, Robin. We'll see you tomorrow night. I'm Jim Lehrer. Thank you and good night.