"Conservatives on Supreme Court Dominated Rulings of Latest Term." "High Court Rulings Hint Move to Right." "The Year the Court Turned to the Right." "The Conservative Majority Solidifies."

If these remind you of the headlines you were reading about three months ago, think again. They were actually taken from end-of-term wrapup pieces in The New York Times in 1984, 1988 (I wrote that one), 1989, and 1991, respectively. Go back to 1972, and you’ll probably find something similar.

So the headline on the July 2, 1995, New York Times wrapup-"Farewell to the Old Order on the Court: The Right Goes Activist and the Center Is a Void"-was not exactly unprecedented.

Nor were those on the 1995 wrapup pieces in The Washington Post ("Court’s Conservatives Make Presence Felt"), USA Today ("High court makes ‘dramatic’ shift: Fall schedule will test court’s conservatism"), and The Los Angeles Times ("1995 Rulings by Supreme Court Herald Dawn of Rehnquist Era").

The journalistic consensus, it appears, is not only that the Court is Turning Right, to borrow the title of Los Angeles Times correspondent David Savage’s fine 1992 book on the Rehnquist Court, but that it has been turning right for a long time, harder and harder as time passes.

Like most consensuses, this one has more than a grain of truth. The Rehnquist Court is no Warren Court; there is nobody like Earl Warren, William Brennan Jr., Thurgood Marshall, or William Douglas on the current Court’s lineup of seven Republican and two (moderate) Democratic appointees; the current chief justice is the same William Rehnquist who was once a lonely dissenter on the right flank of the early Burger Court; and he, along with Justices Antonin Scalia and Clarence Thomas, is pushing hard to bring the Court’s jurisprudence into sync bring the political agenda of the hard right on many issues.

But does all this suggest that the current Court is strikingly conservative-or that the Warren Court and the early Burger Court were strikingly liberal?

The current Court’s balance of power is not held by Rehnquist, Scalia, and Thomas, whose votes are more than canceled out in almost all ideologically charged cases by those of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. The conservatives win only when they can get the votes of both of the justices in the Court’s center, Sandra Day O’Connor and Anthony Kennedy. And those votes almost always come with a hedge.

Much of the commentary about the Court’s past term-like that subhead that noted, "the Center Is a Void"-tends to imply that O’Connor and Kennedy have gone over to the hard right. But their opinions suggest that neither of them has budged an inch from where they have long been.

Among the leading "conservative" exhibits from the Court’s past term are its 5-4 decisions (with Kennedy and O’Connor in the majority) on matters of race, especially Adarand Constructors Inc. v. Peña, 115 S. Ct. 2079 (1995), which required "strict scrutiny" of racially preferential federal affirmative action programs, and Miller v. Johnson, 115 S. Ct. 2475 (1995), which struck down one of Georgia’s three majority-black congressional districts as an unconstitutional racial gerrymander.

But by what frame of reference are these decisions-and the current Court’s rulings on other ideologically charged issues like abortion, religion in schools, and the death penalty-"conservative"?

Perhaps the most obvious (albeit somewhat crude) frame of reference in measuring such things is public opinion. And on each of the issues mentioned above, the Court’s current majority comes up in about the center or even (in the cases of abortion and religion in schools) a bit to the left of center.

Take affirmative action. The Adarand decision did not strike down a single affirmative action program. Rather, it required for the first time that federally mandated racial preferences meet the same standard of justification that the Court has required for state and local preferences since 1989: Such preferences "are constitutional only if they are narrowly -tailored measures that further compelling governmental interests."

O’Connor’s opinion-which is quite consistent with her previous fence-sitting opinions on racial preferences-provides little guidance on what that standard is supposed to mean. But she does make it clear that not all racial preferences will be struck down: "[W]e wish to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact,’ " she wrote, while recognizing the power of government to combat "both the practice and the lingering effects of racial discrimination against minority groups in this country."

Taken as a whole, the 5-4 Adarand decision is sufficiently mushy that even President Clinton, an ardent advocate of affirmative action, was able to claim that it wouldn’t cramp his preferential agenda.

The polls, by way of comparison, suggest that when "affirmative action" hardens into "preferences," the public is pretty solidly opposed-more solidly, perhaps, than the Court. A March 1995 Los Angeles Times survey, for example, found that while most respondents favored the vague concept of "affirmative action programs for minorities," only 22 percent (including 43 percent of blacks) "think qualified minorities should receive preferences over equally qualified whites," while 72 percent (including 50 percent of blacks) "don’t think they should."

Abortion? The Court’s last major pronouncement, Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 2791 (1992), trimmed Roe v. Wade, 410 U.S. 113 (1973), a bit at the margins, but reaffirmed its core holding that women have the right to abort fetuses in the first six months of pregnancy (until viability) free of "unduly burdensome" regulations.

This decision places the Court close to the center of public opinion on the abortion issue, perhaps a bit to the left. A June 1994 Hart/Teeter poll found that 53 percent agreed strongly and 17 percent agreed somewhat that "government should not interfere with a woman’s ability to have an abortion," but a February 1995 Gallup poll found that a 65 percent majority thought abortion should be illegal in at least some circumstances, and a 51 percent majority "personally believe that having an abortion is morally wrong." These and other polls suggest that the public-like the Court-is ambivalent, supporting both the basic right to choose abortion and modest restrictions on that right, like 24-hour waiting periods.

The Court’s rulings that the Constitution bars some racial preferences may deserve a "conservative" label, in the sense that the justices are not simply choosing policy in a vacuum, but curbing the powers of elected officials to adopt a more "liberal" policy. Similarly, the abortion decisions deserve a "liberal" label to the same extent, in that the justices are curbing the powers of elected officials to adopt more "conservative" abortion policies.

Religion in schools? The Court ruled on June 29 in Rosenberger v. Rector and Visitors of the University of Virginia, 115 S. Ct. 2510 (1995), that state universities generally may not discriminate against student religious publications by denying them subsidies that are available to other publications. What’s so conservative about that? Some of the best lawyers in the Clinton administration, and in the American Civil Liberties Union, had argued in-house that this was the correct position. And the fine print in the Court’s opinions-especially the O’Connor concurrence-gave religious conservatives far less than they wanted. The Court’s last church-state decision that can easily be measured against public opinion polls was Lee v. Weisman, 505 U.S. 577 (1992), which reaffirmed the earlier precedents barring state-sponsored prayers during the school day, and extended those precedents by barring all state-sponsored prayers (even nondenominational, nonparticipatory ones) at public school graduation ceremonies.

On that issue, the Court is well to the left of center on the spectrum of public opinion: According to an August 1995 Gallup poll, for example, 71 percent of respondents supported a constitutional amendment favoring spoken school prayers.

The death penalty? The Court has been activist in recent years in seeking to expedite executions by cutting down on federal habeas corpus review. But it has not been activist enough to suit Congress-which, with its finger to the wind of public opinion, is busily pressing for more death penalties and less review. And the Court still presides over a review process that prevents the vast majority of the 250 to 300 death sentences meted out by juries each year from being carried out. Meanwhile, poll data show 70 to more than 80 percent public support for the death penalty.

Some cite the Court’s 5-4 decision on April 26 in United States v. Lopez, 115 S. Ct. 1624 (1995), as evidence that the Court is to the right of public opinion: It was the first decision in four decades to strike down an act of Congress based on the doctrine that the commerce clause does not give Congress unlimited powers, and the act that it struck down-a ban on possessing a gun within 1,000 feet of a school, enforced by tough mandatory minimum penalties-was adopted with apparently broad popular approval in 1990.

But Lopez was hardly a right-wing manifesto. There’s nothing inherently "conservative" about the notion that the framers of the Constitution intended to reserve some outer limits on congressional power. The Kennedy-O’Connor concurrence stressed that the Court’s "limited holding" did not "call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature." Even so liberal a constitutional scholar as Harvard’s Laurence Tribe said that Lopez might well be a useful corrective to the tendency of Congress casually to assume that it can do anything it wants.

And any good liberal should have abhorred the statute that the Court struck down, with its draconian mandatory minimum penalties, as a rotten fruit of the baleful trend toward federalizing the criminal law, which has been driven by congressional pandering to the tough-on-crime crowd.

Journalistic commentaries suggesting a rightward lurch during the Court’s past term tend to downplay the case that was heralded in advance as the biggest in sight: U.S. Term Limits Inc. v. Thornton, 115 S. Ct. 1842 (1995). The Court’s May 22 decision swept aside one of the conservative movement’s favorite causes, and brooked a powerful tide of public opinion, by striking down all laws limiting the terms of members of Congress. While liberals were rightly disquieted that the….