TIME: Almanac 1993/TIME Almanac 1993.iso/time/070191/0701100.000

Text File | 1992-08-28 | 13.6 KB | 271 lines

                                                                                NATION, Page 20

JUSTICE

Right Face!


In the final stretch of a momentous term, a conservative majority
solidifies its hold on the Supreme Court and prepares an assault
on the Warren legacy

By RICHARD LACAYO -- Reported by Julie Johnson/ Washington and
Andrea Sachs/New York


    The former Supreme Court Justice William Brennan used to
tell his clerks, "Five votes can do anything around here." That
was in the days when Brennan regularly stitched together a
narrow liberal majority on a high bench that was delicately
balanced between left and right. Those days are over. Five votes
can still do anything. But now it's the court's increasingly
assertive right wing that usually has them -- and sometimes
more.

    As the court heads toward the conclusion of its latest
term, it has finally completed its decades-long transformation
from the liberal bastion of former Chief Justice Earl Warren
into an aggressively conservative body -- one that seems poised
to alter some of the major rulings of the past. To fellow
conservatives, the right-wing majority may look like the cavalry
galloping to the rescue. Battered liberals are more apt to see
them as the ravaging horsemen of the Apocalypse. The only
question is how far they will go in undoing the liberal legacy
in such areas as church-state relations, individual liberties,
the rights of criminal defendants and abortion.

    The new majority, led by Chief Justice William Rehnquist,
has been building in slow motion. In the early 1970s, during
Rehnquist's first few terms on what was still a liberal-leaning
bench, he was so isolated that his clerks took to calling him
the Lone Ranger. These days he no longer rides alone: he
routinely joins a group that includes Reagan appointees Antonin
Scalia, Anthony Kennedy, Sandra Day O'Connor and Bush appointee
David Souter. Having written only a few rulings since joining
the court this term, Souter remains something of an enigma; yet
he has clearly provided the right wing -- spearheaded by
Rehnquist and Scalia -- with a crucial fifth vote in a number
of important cases in which his predecessor Brennan would almost
certainly have been on the opposing side.

    Nor are the conservatives strictly limited to those five
votes. Byron White is likely to join them on some cases, often
those involving criminal law and police powers. Even John Paul
Stevens supports them on many free-speech issues. That leaves
Thur good Marshall and Harry Blackmun, both 82, the oldest
members of the court, as its only unbudging liberals. "The swing
Justices no longer control the outcome," says Duke University
law professor Walter Dellinger. "There's no swing Justice,
really."

    For years the court spared lawmakers the hard task of
resolving difficult issues like abortion and school
desegregation by imposing solutions in a constitutional
wrapping. The new court is far more likely to toss such
explosive matters back to state legislatures and Capitol Hill.
"We're playing a rearguard action just trying to keep what we
have," says California Democrat Don Edwards, who chairs the
House Judiciary Subcommittee on Civil and Constitutional Rights.
"Congress has to do the work we had counted on the court to do."

    In its next term, which begins in October, the court will
probably have a clear opportunity to overturn the 1973 Roe v.
Wade ruling that granted women the constitutional right to have
an abortion -- just as the presidential election season gets
under way. Last week both houses of the Louisiana legislature
overrode Governor Buddy Roemer's veto of a bill that would
prohibit virtually all abortions, except to save the life of the
mother or in some cases of rape or incest. The new law was
rushed before a federal judge in New Orleans, who will hold a
hearing next month on its constitutionality, the first step on
the road to the Supreme Court, where antiabortion laws from
Pennsylvania, Utah and Guam are also headed.

    Any of those laws could provide the court with an
opportunity to overturn Roe -- a prospect that seemed nearer
than ever after last month's decision in Rust v. Sullivan. In
that case, by a 5-to-4 vote in which Souter sided with the
conservatives, the court ruled that doctors, nurses and other
care providers at clinics that accept federal funds cannot even
mention abortion to their patients. "I've never had much hope
for this court," says Colleen O'Connor, public-education
director for the A.C.L.U. "But I was never as dispirited as when
it came down with the Rust decision. In some ways, it's not safe
to bring a civil-liberties case to this court."

    Making the court unsafe for all kinds of cases is part of
the conservative agenda. A sampling of last week's rulings
gives a good indication of the court's current rightward tilt:

    -- In a 5-to-4 vote, the Justices made it more difficult
for inmates to win lawsuits to improve their prison living
conditions. Now they must prove that prison administrators had
acted with "deliberate indifference" to basic human needs.

    -- In another 5-to-4 decision, the court ruled last week
that states and local governments may ban nude dancers in bars
and other adults-only establishments. The decision was narrow
in its effects -- G-strings and pasties make the dancing O.K.
under the Indiana ban -- but Rehnquist's defense of the law may
open the way to other stricter laws governing sexual conduct.

    -- Voting 6 to 3, the Justices decided that police may
search a bus passenger's baggage if he agrees, even if they have
no warrant or probable cause to suspect him of any crime.
"Working the buses," as the police call it, has become a common
method of interrupting the interstate flow of drugs. Last week's
ruling followed a string of recent decisions that gave police
the power to conduct searches without warrants. The court also
decided during this term that suspects who were arrested without
warrants may be held for up to 48 hours before police press
charges.

    The conservative sway is by no means absolute; the liberal
wing can still claim an occasional victory. Last week the
Justices ruled 6 to 3 that the 1965 Voting Rights Act applied
to the election of state and local judges. That gives blacks and
other minorities an opportunity to bring lawsuits to change
voting methods in the 41 states where some judges are chosen by
ballot. In an important victory for women's rights, the court
ruled unanimously in March to disallow so-called
fetal-protection policies that bar fertile women from jobs that
might pose dangers to an unborn child.

    Rehnquist and his fellow conservatives moved aggressively
this term to capitalize on their majority -- even to the point
of deciding issues that had not been formally raised before
them. For example, they ruled that coerced confessions were not
automatically barred from use as trial evidence, though the case
at hand did not require them to pronounce on that question. In
another case, involving the rights of crime victims, they have
asked both parties to reargue a Burger Court ruling that neither
side had questioned.

    A court that approves challenges to settled law tends to
invite more of them. To anyone unhappy with the legacies of the
old Supreme Court, the new Supreme Court appears to be sending
this message: come up and see me sometime. With several of the
Justices scornful of court-imposed restrictions on church-state
relations, new attempts to restore school prayer are likely, as
well as laws that approve the use of government funds for
parochial schools.

    After decades of waiting to reverse the liberal court
trend, Rehnquist's impatience is almost palpable. Conservatives
often used to accuse the Warren Court of taking decisions out
of the hands of Congress and state legislatures. But even as his
court is kicking some issues back to lawmakers, the Chief
Justice has been willing to do some of his own legislating from
the bench. A revealing case in point is his persistent effort
to streamline capital punishment. For years Rehnquist urged
Congress to pass a law that would prohibit death-row inmates
from repeatedly filing so-called habeas corpus petitions
requesting that their verdicts or sentences be reconsidered in
court. Rehnquist complained that they needlessly dragged out
death sentences and crowded the court with mostly frivolous
petitions.

    But legitimate habeas corpus petitions have been crucial
to death-row inmates whose lawyers, many of them lacking
experience in complex capital cases, often miss crucial issues
at the trial level. Some 40% of all death sentences are
overturned because a federal judge agrees there was some
constitutional error in the verdict or sentence. Much of the
legal profession was therefore pushing for a compromise that
would reduce such petitions while guaranteeing that indigent
Defendants could obtain more competent attorneys when they were
tried for capital crimes.

    But Rehnquist would not relent. When both federal judges
and Democratic leaders in Congress resisted his efforts to
expedite executions, he moved to achieve the same result from
the high bench this term. His vehicle was a Georgia case,
McCleskey v. Zant. Though it meant going further than the case
required, the persuasive Chief Justice fashioned a 6-to-3
majority in favor of setting up procedural obstacles to repeated
habeas corpus requests.

    If Rehnquist is the muscle behind the present conservative
majority, Scalia provides the intellect. Despite his affable
manner, Scalia can be intense in debate and uncompromising in
his rulings. As the only present court member who was once a
full-time law professor, he is prone to lecture his colleagues
-- sometimes in injudicious terms. In a 1988 concurring opinion,
for example, he called one of O'Connor's arguments "irrational"
and said of another that "it cannot be taken seriously."

    Scalia's strongly held legal principles and unyielding
manner prevent him from playing the role of court politician
that was a specialty of William Brennan, who could adroitly
adjust his written opinions to attract the votes of his wavering
fellow judges. "When Scalia states his view in the strongest
terms, often the other conservative Justices drop a footnote
saying they don't necessarily agree," says Joseph Grano, a law
professor at Wayne State University in Detroit. But the hard
edge of Scalia's writings is the very thing that has made him
especially influential with judges in the lower federal courts,
where they appreciate the clear guidance he offers as to how
they should apply Supreme Court precedents.

    One article of faith among conservative jurists is that
the courts are no place for resolving questions better left to
the legislative branch. The Supreme Court is already taking
that to heart. During this term it agreed to hear arguments in
just 125 cases, down sharply from 170 two years ago. One reason
for the decline is that since two-thirds of all current federal
judges are Reagan or Bush appointees, Rehnquist and his
like-minded colleagues are seeing fewer lower-court rulings with
which they sharply disagree. The high court's conservative
majority has also been handing down decisions, such as the one
last week on inmate lawsuits, that make cases more difficult to
bring to trial and to win. "The argument that has the greatest
effect nowadays is for judicial economy," says Columbia
University law professor Vincent Blasi. "They're working very
hard to cut down on opportunities for litigation."

    At the same time, liberal groups are steering clear of the
federal courts, fearing defeat at the lower levels or worse at
the top, where their cases might be seized upon as an
opportunity to overturn important liberal precedents. They
haven't given up litigating, however. Organizations such as the
NAACP Legal Defense Fund and the A.C.L.U. have been turning more
often to the state courts. Though state judges were once
regarded as cracker-barrel reactionaries, these days some state
constitutions have been interpreted by the courts to provide
more specific guarantees of individual liberties than the
federal Bill of Rights.

    What hope do liberals have now that the tide is running
against them on the Supreme Court? One recourse is to turn to
Capitol Hill. When the high bench acts to interpret
congressional legislation, Congress can vote to overrule the
Justices -- if that vote can survive a presidential veto. That's
a big if. House and Senate committees both have approved
legislation intended to overturn Rust v. Sullivan, but Democrats
in Congress doubt they will have the two-thirds majority
necessary to override an almost certain veto. The same is true
in the bruising fight over a new civil rights act -- the one
Bush labels a quota bill -- that was introduced to overturn a
string of Supreme Court rulings that made it harder for
minorities and women to sue employers for discrimination.

    Liberals can take heart in the tendency of some Justices
to shift views during their years on the bench. Blackmun moved
to the left from his first days on the court. On the whole,
O'Connor has drifted toward the center. Souter, who voted the
same way as O'Connor in dozens of cases this term, may yet do
the same. But the possibility of gradual leftward movement is
cold comfort to liberals who realize their two aging champions,
Marshall and Blackmun, may eventually be replaced by George Bush
appointees. And that would almost certainly turn the
conservative bloc into a juggernaut that will dominate the court
well into the next century.