THE SOUL OF A NEW MAJORITY

THE DEATH OF FORMER CHIEF JUSTICE Warren Burger was a reminder of how long the Supreme Court has been under watch for signs that the rule of its liberal wing was over: roughly, it would seem, from the day Richard Nixon named Burger to the court in 1969. For the next two decades, the liberals managed to score victories in the face of what should have been superior numbers. But even if they have lost ground slowly, they have lost it all the same. Last week as Burger was laid to rest, so too was another good bit of the Earl Warren legacy. When in a single day the court can rule against a black-majority voting district and in favor of public funding for a Christian student magazine--and for good measure approve a cross erected by the Ku Klux Klan in a public park--it can't be much fun anymore to be a liberal Justice.

All that was merely the finale of a term in which the court's conservatives tightened the screws on affirmative action, said "enough" to a famous effort to achieve school desegregation, approved suspicionless drug testing for high school athletes and forbade Congress to extend power over the states. What made all the difference is that Sandra Day O'Connor and Anthony Kennedy, two perennial swing votes, swung regularly to the right. There they met up with Chief Justice William Rehnquist, Antonin Scalia and Clarence Thomas, the slash-and-burn conservatives. That the term also saw the further consolidation of a fairly reliable four-vote liberal block--John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer--is cold comfort to those four and their supporters. Unless they can attract O'Connor or Kennedy to their side more often, the left wing of the court is in danger of becoming a vestigial organ, visible but pointless.

Among last week's decisions, it was Miller v. Johnson, in which the court struck down a Georgia redistricting plan, that will have the greatest immediate impact. To satisfy the Voting Rights Act of 1965, several states have created congressional districts in which blacks or Hispanics constitute a majority. As a result, in the past decade the number of minority representatives in Congress has nearly doubled.

With prodding from the Justice Department, Georgia created three such "majority minority" districts, including one now represented by Cynthia McKinney, a black Democrat. In a suit brought by five white voters, the court ruled that because race was the "predominant'' consideration in drawing McKinney's district, it violated their rights under the Equal Protection Clause of the 14th Amendment. "Racial classifications with respect to voting,'' Kennedy warned, "threaten to carry us further from the goal of a political system in which race no longer matters.''

The decision still allows race to be taken into account in the creation of voting districts. In a separate one-paragraph order, the court even upheld California's 1992 redistricting plan, which had created nine black and Hispanic majority districts. But as they did with affirmative action, the majority ruled that government could take race into account only through "narrowly tailored" remedies.