While you would hardly know it from the tenor of the campaign, this year’s presidential election could have a far more dramatic impact than most on the political-philosophical orientation of the Supreme Court, and thus on the direction of constitutional law.

That’s because the Court is now so closely divided on such vital Issues that the replacement of one of the conservative justices with a liberal, or vice versa, could make an enormous difference-above all, on questions of race, congressional power, and states’ rights.

For this reason, the next confirmation battle could well be reminiscent of the 1987 donnybrook over Robert Bork. The stakes were high then mainly because the pivotal justice whom Bork would have replaced, Lewis Powell Jr., had sided with liberal majorities in so many critical 5-4 decisions.

Of course, it’s entirely possible that all nine justices will stay on for four more years, or that any who step down will be replaced with people of similar orientation. But two scenarios could bring epochal change:

Scenario 1: Bob Dole wins; a liberal retires (most likely 76-year-old Justice John Paul Stevens, the Court’s oldest and most liberal member); Dole replaces him with a conservative; and suddenly we have the most conservative Court in modern history.

Scenario 2: President Clinton wins (as seems far more probable); a conservative retires (most likely 72-year-old Chief Justice William Rehnquist); the president replaces him (or elevates Justice Ruth Bader Ginsburg and then replaces her) with a liberal or moderate liberal; and suddenly we have the most liberal Court since (at least) Earl Warren.

Either scenario could have a transformative impact on a wide range of issues, including school desegregation, school prayer, other church-state matters, gay rights, sex discrimination, the rights of criminal defendants and death row prisoners, gun control, immigrants, and First Amendment disputes over campaign financing, tobacco advertising, children’s television, and speech alleged to constitute sexual or racial harassment. I discuss here the biggest issues on which the Court is most at the tipping point.

Under Scenario 1, racial preferences and creation of race-based majority-minority voting districts could soon be dead; the powers of Congress vis-à-vis the states might be rolled back more than 60 years; and Roe v. Wade would hang by a 5-4 thread.

Under Scenario 2, on the other hand, racial preferences and districting would be secure; the Court’s current push to revive states’ rights and curb federal power would be abandoned; and abortion rights would be sheltered by a safe 7-2 majority.

These forecasts flow from the voting patterns of the current nine justices. In this regard, the conventional wisdom that we have a "conservative Court" now is not really true-not; at least, if the frame of reference is the perspective of the electorate, as distinguished from the viewpoints of the journalists and law professors who shape the conventional wisdom.

In fact, only three justices (Rehnquist, Antonin Scalia, and Clarence Thomas) vote consistently to the right of center of public opinion. Four (Stevens, David Souter, and Clinton appointees Ginsburg and Stephen Breyer) vote consistently (if a bit less markedly) to the left of center. The remaining two (Sandra Day O’Connor and Anthony Kennedy) lean to the right o some issues (like racial preferences and states’ rights) and to the left on others (like abortion and church-state matters).

That means that in order to move the law to the right, the three conversations need both O’Connor (an ardent champion of states’ rights) and Kennedy (more moderate on states’ rights, but a more ardent critic of race-based policies). In order to move the law to the left, the four liberals need only O’Connor or Kennedy.

The Court’s most dramatic moves in recent years have reflected guarded hostility to racial preferences and districting, and increasing solicitude for states’ rights (and wariness of congressional power). But while O’Connor and Kennedy (to varying degrees) have made these moves possible, they have not gone nearly as far as the Rehnquist-Scalia-Thomas bloc would go.

Thus, in the most recent racial-preferences case, Adarand Constructors Inc. v. Peña (1995), O’Connor’s opinion for the 5-4 majority required the same "strict scrutiny" of preferential federal laws that the Court had required of state and local laws in 1989. But while she was long on rhetoric about the dangers of race-based policy making, O’Connor stopped well short of striking down on its face even the rather bald racial preference for minority contractors at issue in Adarand. And she added a crucial hedge. "[W]e wish to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact,’ " O’Connor wrote, stressing the government’s authority to combat "both the practice and the lingering effects of racial discrimination against minority groups in this country."

Similarly, in the recent line of 5-4 decisions striking down several race-based electoral districts, O’Connor has supplied the critical fifth vote-but with the Important qualification that (in some circumstances) reasonably compact majority-minority districts are not only permitted by the Constitution but required by the Voting Rights Act.

In all of these race cases, Rehnquist, Scalia, and Thomas would have erected a nearly insuperable presumption against the constitutionality of all government-sponsored racial preferences and race-based districts. Kennedy’s writings suggest that he might well join them.

On the states’ rights front, the Rehnquist-Scalia-Thomas bloc has pushed a narrow view of the commerce clause and other founts of federal power, and a broad view of state powers and immunities under the 10th and 11th Amendments. They would wipe out decades of precedent allowing the federal government (and courts) to take over traditional state and local functions and to regulate the states themselves.

Their biggest win was the 5-4 ruling in United States v. Lopez (1995), striking down an act of Congress criminalizing gun possession within 1,000 feet of a school. It was the first holding in four decades that congressional power under the commerce clause is subject to some inherent limits.

While Kennedy concurred (in a separate opinion joined by O’Connor), he stressed that this "limited holding" did not "call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature."

O’Connor inclination to go further than Kennedy down the states’ rights road was most evident when she joined Thomas’ 88-page dissent in another 5-4 decision, U. S. Term Limits Inc. v. Thornton (1995). While the majority struck down all laws limiting the terms of members of Congress, the four dissenters laid down a states’ rights manifesto so far-reaching that Linda Greenhouse observed in The New York Times: "[I]t is only a slight exaggeration to say that the dissent brought the Court a single vote shy of reinstalling the Articles of Confederation."

Kennedy voted with the majority, however, and added a concurrence expressing alarm at the tone of the dissent, which he said "runs counter to fundamental principles of federalism."

What might the Court do-unless restrained by more respect for precedent than has recently been apparent-should a liberal like Stevens be replaced by a conservative like Scalia?

There might well be five votes (including Kennedy’s) to wipe out virtually all government-sponsored racial preferences, with consequences including a drastic decline in integration of our elite universities. Meanwhile, the 1982 amendments to the Voting Rights Act–which clearly contemplate some degree of remedial race-based districting- could be gutted or even struck down.

Perhaps even more consequential in the long run, there might be five votes for the kind of historic rollback in congressional power on multiple fronts, and cognate revival of states’ rights, that was envisioned in Thomas’ Term Limits dissent, which stressed that federal powers are "limited and enumerated" and that "the ultimate source of the Constitution’s authority is the consent of the people of each individual state."

Now consider Scenario 2-a Clinton victory followed by a Rehnquist retirement and appointment of a new justice like Ginsburg:

Racial preferences and race-based districting-the constitutionality of which have been endorsed with few reservations by the four more liberal justices- would suddenly be secure, at least as far as the Court is concerned. (The democratic process may come into play here, through measures like the ballot initiative on which Californians will vote Nov. 5.) Also secure would be abortion rights.

And so would the power of the federal government to regulate just about everything, including state and local governments. The 10th Amendment, which Bob Dole says he carries around in his pocket, would be a dead letter (again).

Those are the stakes. Now comes the vote.