The Forlorn Hopes of Justice White


Washington. -- As usual, the end-of-term fireworks were spectacular. By the time the Supreme Court shut down for the summer Monday, tempers were publicly flaring on the bench. Cases were exploding with skyrocket bursts of multiple opinions. It was time to go home.

The term that began in October produced opinions in 115 cases, down a little from the average of recent years. The final week brought several opinions of substantial significance, notably in property rights and civil rights. These cases will provide abundant material for comment as the summer rolls on.

For today, let me say something about the high court's regrettable trend toward turning its decisions into scrambled eggs. In his farewell letter to his colleagues, Justice Byron White said he hoped future decisions "will be clear, crisp, and leave those of us below with as little room as possible for disagreement about their meaning."

Well, Justice White can always hope. Looking back over the term, I see mighty few major opinions that were clear and crisp and loaded with confident guidance. Most of the big cases produced a chorus of dissonant voices all singing from different scores. This was entirely typical -- and it wasn't even a big case:

"White, J., delivered the opinion of the court with respect to Parts I, II, and IV, in which Rehnquist, C.J., and O'Connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined, the opinion of the court with respect to Parts III-A and III-B, in which Rehnquist, C.J., and O'Connor, Scalia, and Thomas, JJ., joined, the opinion of the Court with respect to Part III-C, in which Rehnquist, C.J., and Kennedy, Souter, and Thomas, JJ., joined, and an opinion with respect to Part III-D, in which Rehnquist, C.J., and Scalia and Thomas, JJ.,joined. Souter, J., filed an opinion concurring in part, in which Kennedy, J., joined. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined."

The court thus answered a question of towering magnitude: May radio station WMYK-FM in Moyock, North Carolina, broadcast lottery advertising? The case involved "commercial speech," an interesting issue under the First Amendment, but the issue here was of singular unimportance. Virginia has a state lottery. North Carolina does not have a state lottery. Was the station deprived of its constitutional right of free speech?

This kind of fragmentation occurs regularly. On Thursday the court handed down opinions in five cases, on Friday it decided three more, and on Monday another six -- 14 in all. Those 14 cases produced an astonishing 46 separate opinions. Their eminences should be charged with littering.

It never used to be this way. Out of curiosity I pulled down Volume 318 of the U.S. Supreme Court Reports. It covered the 1942-43 term of court. There were some first-rate prima donnas on the bench at the time -- Hugo Black, William O. Douglas, Felix Frankfurter. The 1943 court included two justices with strong opinions on just about everything -- Harlan Stone and Robert Jackson. Such justices as Roberts, Reed and Murphy were nobody's patsies.

Yet the 1943 court, compared to the 1993 court, was a model of restraint. The term's first 14 cases produced exactly 20 opinions. Black wrote three dissents and Chief Justice Stone wrote one. Frankfurter wrote one concurring opinion; Douglas wrote another. That was the crop. In one case the court reporter made a laconic note: "Mr. Justice Roberts and Mr. Justice Jackson dissent." No coloratura arias for them.

Today's justices think nothing at all about recording their objections to single sentences or single footnotes. Their consciences will not permit them to acquiesce in a single word not precisely to their taste. The court bursts into jurisprudential splinters, and the lower courts are left to pick up the pieces.

Moreover, we see signs, especially at end of term, that suggest unwelcome friction on the bench. Justice Souter charges Justice Scalia with "destroying" a solid structure of civil-rights law. Mr. Scalia says Mr. Souter's reasoning is "nothing short of absurd." In a death sentence case, Justice Blackmun says Justice Thomas' analysis is "contrary to common sense." Mr. Stevens accuses Mr. White of writing an opinion "with barely a whisper of analysis." Justice O'Connor says that Justice Stevens approves punitive damages based on "caprice and bias, whim or will."

Gently, gently! Owen Roberts once remarked that the high court's only restraint "is our own sense of self-restraint." Not much of that anymore. Justice White's departing "hope," alas, is a hope in vain.

James J. Kilpatrick is a syndicated columnist.

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