Moderate justices put stamp on court Conservative era of Rehnquist wanes

THE BALTIMORE SUN

WASHINGTON -- The Supreme Court has just finished a dress rehearsal for a future that may soon be reality, a new era of moderation no longer symbolized by its identity as "the Rehnquist Court."

Even without a change in its membership -- although that seems to be coming, perhaps in just another year -- the court led by Chief Justice William H. Rehnquist is already offering strong evidence that his style of deep conservatism is not likely to remain the majority style.

Chief Justice Rehnquist has given not only his name to the court, as chief justices always do, but has been able in recent years to draw it deeper into the conservatism he personally has espoused for 20 years as a jurist.

Now, amid rising speculation in legal circles and at the court that he will retire at the beginning of next summer, perhaps along with the court's senior liberal, Justice Harry A. Blackmun, the "Rehnquist era" of conservative domination appears to be waning.

The court, the evidence from the term that closed last week suggests, is not now, and probably is not going to be, controlled by the most committed conservatives -- the ones closest to Chief Justice Rehnquist in philosophy.

The tribunal most clearly is operating now under the moderate influence of three justices: Sandra Day O'Connor, the calming, "balance-wheel" justice who holds the court close to the middle; Anthony M. Kennedy, the conspicuous constitutional scholar with no ideological agenda; and David H. Souter, the two-year justice who already is well on his way to intellectual leadership.

A rather odd tribute to their seeming control, almost any time they choose to exert it, came on the last day of the term in the historic abortion decision, when their jointly written opinion stirred Justice Antonin Scalia into an outpouring of open wrath. It was a slashing gesture of the kind he made against Justice O'Connor alone in the last abortion decision three years ago.

In just one example, Justice Scalia assailed those three for "almost czarist arrogance" for their refusal to overrule Roe vs. Wade -- the 1973 abortion decision that he wants, with considerable passion, to cast aside.

If the court's membership does undergo a change at the end of the next term, the O'Connor-Kennedy-Souter trio seems likely to hold sway over much of the court's work at least in the transition to a new chief justice, no matter who that is.

President Bush, or a different president if Mr. Bush is sent home by the voters in November, may actually have two nominations to make next year.

Over the past several months, the talk of changes -- long focused on Justice Blackmun -- has turned more toward the chief justice. Indeed, on the last day of the just-ended term, the speculation over Chief Justice Rehnquist's future was even more active than it was over a voluntary departure by Justice Blackmun.

In a perhaps telling remark, the 67-year-old head of the judiciary told a cable TV interviewer on C-SPAN last week that, while he liked his job, "I wouldn't want to hold it forever."

Justice Blackmun, who began as a moderate conservative and has become notably liberal on most issues (and was the author of Roe vs. Wade), once toyed with the idea of retiring when he reached 75. He will be 84 in November.

In a separate opinion he wrote in the latest abortion case, he remarked: "I am 83 years old. I cannot remain on the court forever."

That case was decided on a 5-4 vote.

A replacement for Justice Blackmun, if chosen by Mr. Bush, could help turn the court around on the abortion issue. That would occur if two new Bush appointees are recruited as allies by Justice Scalia.

It was clear by the end of the last term, though, that Justice Scalia, who by dint of personality and broad intellect had seemed likely someday to make the court "his," found himself in something of an eclipse. His forays to the most conservative side of major disputes generally had left him short of a majority: He had drawn the dependable support of new Justice Clarence Thomas, the frequent support of Chief Justice Rehnquist, and the fairly frequent support of Justice Byron R. White.

Those four, indeed, were the dissenters in the abortion decision, and they also were together in dissent in two other 5-4 rulings on major issues -- barring prayers at public school graduation ceremonies, and easing the way for more protest marches.

Another measure of the term's trend away from Justice Scalia's potential influence was that he was on the losing end of five of the court's 5-4 rulings on 10 key cases. Justice Thomas, who has made a place for himself as a conservative close beside Justice Scalia, was in dissent in six of those cases.

Those two justices' voting pattern reportedly was mocked by the court's departing law clerks at a recent party, with suggestions in a skit that anyone who won Justice Scalia's vote actually could claim two.

Together, though, they turned out to be no match for the O'Connor-Kennedy-Souter grouping. Those three held control in a variety of ways throughout the term, and the statistics show it. On the court's 49 most important rulings, the three were together in the majority on 32.

When the top 20, the "biggest of the big," decisions are sorted out, those three were in the majority together in 13.

Among those were the three major surprise decisions of the term: the decision to reaffirm Roe vs. Wade (while limiting the abortion right considerably), the new ban on prayers at public school graduation, and the landmark decision ordering once-segregated state colleges and universities to get on promptly with the task of desegregating.

L Not one of those outcomes seemed likely earlier in the term.

When one of three justices in the moderate trio broke off from the others to dissent, as happened in 11 separate cases among the major ones, the other two stayed together and helped make a majority.

Justice O'Connor, although she showed a slightly greater tendency than the other two to vote with the court's two remaining liberals (Justice Blackmun and Justice John Paul Stevens), was by no means a heavy dissenter. That, too, reflected her leadership role.

Out of the court's total of 107 written decisions in the term, Justice O'Connor wrote 15 -- the most except for Justice White with 16.

Justice White votes frequently with the most conservative bloc, but still retains an occasional independent streak, moving either way.

On the term's "top 20" decisions, Justices O'Connor and White nearly tied: She was an author, alone or with a partner, on five of those most significant rulings, and he was the sole author on five.

Among the nine justices, only Justice Thomas, who joined the court late after his Senate confirmation, wrote none of the "top 20" rulings. He was active in writing dissents, however.

Justice Kennedy, a longtime teacher of constitutional law as a sideline to judging, continued to emerge during the term as a philosophical leader on major disputes under the Constitution.

He was the author, for example, of the rulings against school prayers at graduation, writing one of the term's most extensive historical essays on the Constitution.

When groups allied with the court, or outside groups, seek a justice to make a speech on the Constitution, not infrequently they ask Justice Kennedy, and he usually obliges. He has not written constitutional history books, as the chief justice has, but he appears to be working diligently at building his reputation as a scholar of the nation's basic government document.

When that interest is transposed by Justice Kennedy into a court opinion, there is no sign of stubbornly held ideological premises.

Although Justice Kennedy is inclined to vote somewhat more frequently than either Justices O'Connor and Souter with the court's most conservative justices, he exhibits none of the Scalia bloc's routine tendency to insist that only their approach is correct.

The Kennedy-O'Connor-Souter alliance appears to be able to control outcomes without alienating their brethren.

Significant rulings

The Supreme Court's most significant decisions during the 1991-1992 term that closed last week. The justices' votes are given in parentheses.

* Abortion: (5-4) Roe vs. Wade will not be overruled, but the right to abortion is now narrowed significantly. Opinion by Justices Kennedy, O'Connor, Souter. Planned Parenthood of Southeast Pennsylvania vs. Casey.

* School prayers: (5-4) It is unconstitutional for public school officials to arrange to have any prayers said at student exercises, including graduation ceremonies. Opinion by Justice Kennedy. Lee vs. Weisman.

* Desegregation: (9-0) Public school districts that have ended racial segregation do not have to adopt busing or other "heroic measures" to prevent a return to one-race schools. Opinion by Justice Kennedy. Freeman vs. Pitts.

* (8-1) State colleges and universities that once were segregated racially have an "affirmative duty" to dismantle segregation policies and programs. Opinion by Justice White. U.S. vs. Fordice, Ayers vs. Fordice.

* Cross-burning: (6-3) The government may not single out certain hate messages, by speech or symbolic gesture, such as burning a cross on a black family's lawn, and outlaw only those that the government disapproves. Opinion by Justice Scalia. R.A.V. vs. St. Paul.

* Smoking and health: (6-2) Federal cigarette warning label laws do not bar all state court lawsuits seeking damages from tobacco companies for allegedly covering up the health hazards of smoking. Opinion by Justice Stevens. Cipollone vs. Liggett Group.

* Airport terminals: (5-4) Government-run airports are not public forums open to all speechmaking, leafleting or fund raising. Opinions by Chief Justice Rehnquist and Justices Kennedy, O'Connor and Souter. Krishna Consciousness vs. Lee.

* Write-in voting: (6-3) The Constitution does not give voters any right to express their displeasure with the candidates on the ballot by writing in the name of someone else. Opinion by Justice White. Burdick vs. Takushi.

* Race and juries: (7-1) It is unconstitutional for defense lawyers in cases of interracial crimes to use race as a factor in selecting the jury. Opinion by Justice Blackmun. Georgia vs. McCollum.

* Parades and demonstrations: (5-4) Local governments may not force organizers of controversial marches and protests to pay the cost of providing police to protect them. Opinion by Justice Blackmun. Forsyth County vs. Nationalist Movement.

* Kidnapping: (6-3) The U.S. government violates no American law, although it may break international law, if it goes to another country to kidnap a citizen there, to bring that person back to this country for a criminal trial. Opinion by Chief Justice Rehnquist. U.S. vs. Alvarez-Machain.

* Pornography: (5-4) An individual may not be convicted of buying pornography through the mail, if the government secretly enticed that individual over a long period of time to buy such material. Opinion by Justice White. Jacobson vs. U.S.

* Crime stories: (8-0) It is unconstitutional for states to single out criminals' profits from telling their crime stories in books, and turn the money over to their victims. Opinion by Justice O'Connor. Simon & Schuster vs. New York State.

Washington Bureau

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