Justices are so alike that the Supreme Court could become 'irrelevant'

THE BALTIMORE EVENING SUN

BOSTON -- The confirmation of Clarence Thomas to the Supreme Court has created one of the most ideologically homogeneous high courts in this century and the possibility that there will be fewer of the ringing dissents on which law is often built.

Many legal practitioners and scholars say the ideological similarities of the court's members could lead it to forfeit its status as an intense intellectual forum where judges often disagree on how to resolve the issues that face the country. Not only is the court likely to take a conservative view in major cases, these observers contend, but dissenting justices will less frequently chart recourses for lawyers in subsequent cases. Less often will justices open the door a crack for like-minded judges in lower federal and state courts to craft opinions or accept arguments suggested in minority dissents.

Although Thomas declined to spell out his constitutional philosophy during his confirmation hearings, many legal observers expect him to pursue the course he followed as a Reagan administration official and tread the conservative path of the court in recent years.

Kathleen Sullivan, a professor from Harvard Law School, believes "this will be more the court of concurrences than dissent. The reasoning will be different where the results aren't."

Nancy Gertner, a Boston attorney and civil libertarian, contends that "no one on that court really disagrees with each other."

"You'll see dissents, but they aren't going to be Brandeis dissents or Brennan dissents," she said. "They won't set the tone for the shaping of future policy. I'm afraid the Supreme Court is going to become irrelevant."

Some legal theorists -- conservatives as well as liberals -- contend that Thomas and the two conservative justices appointed before him, Anthony M. Kennedy and David H. Souter, lack the intellectual fortitude necessary to craft dissents, especially when surrounded by strong personalities such as Chief Justice William H. Rehnquist and Justice Antonin Scalia, with whom they might agree on many issues.

But others, such as Charles Fried, a Harvard Law School professor who was U.S. solicitor general in the Reagan administration, dispute that contention. "In terms of the quality of persons, I think that's a selective and parochial view," Fried said. "Look at the people Truman appointed to the bench. They were as dim a collection of individuals as you'd find anywhere.

"I would say that if you look at the whole range of justices from the beginning of the republic, I think Thomas raises the average. That goes for Souter and Kennedy, too. Am I saying they will be Holmes, Brandeis or Cardozo? No, but neither was Thurgood Marshall."

Legal theorists consider Supreme Court dissents to be as significant as majority opinions. Most cases include a written opinion from a justice who disagrees with the majority, and other dissenting judges frequently sign on.

Often those dissents are quickly forgotten. But sometimes, especially when they involve divisive, thorny issues such as race and the freedoms of expression guaranteed under the First Amendment, they percolate through a body of legal thought and argument to eventually become the law of the land. "A dissent," wrote Charles Evans Hughes, a justice from 1910 to 1916, "is an appeal to the brooding spirit of the law, to the intelligence of a future day."

A.E. Dick Howard, a professor of law at the University of Virginia, says dissents have been important in only the past 100 years of the court's history. He says Justices Louis Brandeis and Oliver Wendell Holmes were the first to elevate dissent to an art form. "You saw sporadic dissents in the 19th century," Howard said. "Only with Brandeis and Holmes did you see the use of dissent in American constitutional law become a powerful force for the change of doctrine."

Dissents also can signal the end of ideological alliances. Like many scholars, Terrance Sandalow, a professor at and former dean of the University of Michigan Law School, points to the 1939 dissent in which Black parted company with his ideological soulmate, Felix Frankfurter, who had written the majority opinion upholding as constitutional a requirement to pledge allegiance to the flag. "From then on, Black and Frankfurter had radically different views on the First Amendment," Sandalow said.

Black got the last word in, when in 1943 Frankfurter found himself writing the dissent as the mandatory flag salute was overturned. That ruling has remained the law ever since.

Scholars and lawyers say the justices do not view their roles in the way that past justices have. "The pattern emerging now is distinctive," Howard said. "Something will be lost in the process. There will be the odd dissent, but it will be written for history, for posterity, in the hopes that times will change."

The docket from which the Supreme Court began selecting cases last week includes some that involve especially divisive issues. It lists a school prayer case out of Providence, desegregation of public school and university systems in Georgia and Mississippi, and a case argued last Wednesday, on whether an anticonspiracy law can be used against Operation Rescue members who block abortion clinics.

Sullivan, like many other scholars and court watchers, predicts that instead of overturning major cases -- such as Roe vs. Wade in abortion or Brown vs. Board of Education in desegregation -- the homogeneous court is likely to rule on issues very specific to the individual cases before them. "Roe vs. Wade won't be overturned," said Sullivan.

Alan M. Slobodin, president and general counsel for the Washington Legal Foundation's legal studies division, says the divisions on the court are not as obvious as in the past.

"I think the court is divided, but on different lines," he said. "Instead of being conservative vs. liberal you've got a court that is broken up along different lines."

For example, he said, Scalia and Justice Sandra Day O'Connor, though widely viewed as being conservatives, rarely agree with each other. "I still think there are important differences in outlook and experience on the court," he said.

Sullivan says that while "the day of the towering dissent in criminal procedure is over, it's more complicated when you get into issues of speech and religion, where you've got O'Connor and Souter as moderates. They are the new Justice Powell," she said, referring to Lewis Powell, a Nixon appointee who retired in 1987.

Many agree that Rehnquist is the most powerful voice on the bench now, even if it is a somewhat muted voice. While Brennan formed narrow majorities by saying so much in his opinions, including, in footnotes, the work of all who formed the opinion, Rehnquist is regarded by many as a minimalist. "Rehnquist doesn't write long opinions, so he doesn't say a lot that would offend people," says Slobodin.

A kinder and gentler court? Boston attorney and civil libertarian Harvey Silverglate thinks not.

"The danger here is you have a couple of strong minds and personalities. You have Rehnquist and Scalia, and the rest are going to end up as filler. The administration will reign supreme. The court, usually a counterbalance, will not be."

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