A Supreme Court unrestrained

THE BALTIMORE EVENING SUN

THE U.S. Supreme Court is out of the closet. The myth that it is only liberals who are judicial activists stands exposed.

The Supreme Court has never acted in as nakedly activist a manner as did the Rehnquist court last month in a case known as "McCleskey II" (McCleskey vs. Zant). No longer will it be possible for conservative politicians to proclaim that the appointees of Presidents Nixon, Reagan and Bush believe in judicial restraint.

In McCleskey II, the Supreme Court unabashedly legislated drastic restrictions on one of our most fundamental rights -- the writ of habeas corpus. The writ, which dates back to the time of the Magna Carta, entitles every person to challenge his or her unlawful confinement. It is the basic check on a police state. Overturning long-established judicial doctrine, the court held in McCleskey II that a person who is sentenced to die following a prosecution tainted by serious governmental misconduct may not file a petition for habeas corpus if he previously filed one and failed to complain of the government's conduct -- even though he was unaware of the critical facts because the government had deliberately concealed them from him. In the name of efficiency and speed, the Supreme Court deliberately chose to sacrifice fairness and due process.

It is not surprising that the court led by Chief Justice William H. Rehnquist has, in a series of cases, systematically gone about the process of dismantling habeas corpus. This court has shown little concern with individual rights or personal freedom. Rather, it has sought to increase the authority of government over the private lives of individuals and to undermine historic protections against police abuse.

Only a week before McCleskey II, in the case of Arizona vs. Fulminante, one of the court's most conservative justices, Byron R. White, made it clear that even he could not stomach some of the more extreme activism of the Rehnquist-led majority.

Regarding the court's ruling that the use of a coerced confession does not necessarily render a trial unfair, White caustically observed, "Today, a majority of the court, without any justification, overrules this vast body of precedent without a word and in so doing dislodges one of the fundamental tenets of our criminal justice system."

On April 16, 1991, a day that judicial scholars and defenders of civil liberties will long remember, the right wing of the court, with Justice White back in the fold, did by judicial fiat what Chief Justice Rehnquist had been unable to accomplish through other means.

The events leading up to McCleskey II are extraordinary. In his eagerness to limit the right of death row inmates to challenge the constitutionality of their sentences, the chief justice of the United States undertook several unusual steps. First, he appointed a committee of five judges from the South, where almost all recent executions have occurred, to conduct a congressionally mandated study of how death-penalty appeals could be curtailed. The committee, headed by former Supreme Court Justice Lewis Powell, whose views were well-known to Rehnquist, brought forth precisely the type of report that might have been anticipated. The chief justice immediately forwarded it to Congress..

The Powell report recommended prohibiting a second habeas corpus challenge to a death sentence, even when the state had knowingly used perjured testimony or had otherwise wrongfully concealed from the defendant facts that would require reversal of the sentence.

When the chairman of the Senate Judiciary Committee, Joseph Biden, D-Del., questioned Powell about this patently unfair provision, Powell replied that his report couldn't possibly mean what it said. Moments later, the chief staff member of the Powell committee corrected his boss; he told Biden that Powell had made an error, that the rights of unconstitutionally sentenced death row defendants would indeed be cut off under the Powell proposal.

The Rehnquist-endorsed plan quickly suffered a series of resounding defeats. First, a majority of the members of the Judicial Council of the United States, a body composed of the nation's most senior judges, a group that ordinarily ratifies with enthusiasm any suggestion by a chief justice, rejected the most controversial parts of the Powell report.

Then Congress, despite intense lobbying by the U.S. attorney general and state prosecutors, refused to include any part of the Powell committee's recommendations in the 1990 crime bill.

A few months later, the Supreme Court struck back. Having failed to obtain from Congress the legislation the chief justice sought, the "conservative" majority adopted the rule rejected by Congress, not only for death sentences, as the Powell committee had proposed, but for all convictions. The long-run consequences of this exercise in judicial activism remain to be seen. At the least, one might hope that in the future, frank discussion of the role of judicial philosophy and attitudes in decision-making will be possible, and attacks on liberal judges by demagogic office-seekers will be seen for the arrant hypocrisy they have always been.

It is clear what we can expect from the Supreme Court for the foreseeable future. In the past four or five years, the "conservative" majority has overturned decades of civil-rights rulings, eliminated fundamental deterrents to unlawful police practices, gutted the long-standing protection of religious practices by persons other than those belonging to a "majority" religion, sanctioned the invasion of the bedroom and the criminalization of homosexual conduct and proclaimed its eagerness to overturn the right to abortion as soon as one more vote can be garnered.

Certainly, today's majority is no believer in judicial precedent. Nor does it follow the doctrines of "judicial restraint" or "strict construction." A far different term from "conservative" is needed to describe the activist right-wing majority that is currently rewriting U.S. constitutional law in its own image.

Whatever that term may be, the judicial and political ideology that drives the current Supreme Court does not portend well for individual rights or fundamental freedoms in these United States.

Stephen Reinhardt is a judge of the United States Court of Appeals for the Ninth Circuit.

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