TIME: Almanac 1993/TIME Almanac 1993.iso/time/073090/07301010.000

Text File | 1992-08-28 | 11.3 KB | 254 lines

                                                                                NATION, Page 16

Right Turn Ahead?


A liberal Justice's resignation brings an end to an age of
judicial activism. Now Bush may try to accelerate the Supreme
Court's conservative trend.

By ED MAGNUSON -- Reported by Dan Goodgame/Washington and Andrea
Sachs/New York


    "It is my hope that the Court during my years of service has
built a legacy of interpreting the Constitution and Federal
laws to make them responsive to the needs of the people whom
they were intended to benefit and protect.

    This legacy can and will withstand the test of time."

    -- Justice Brennan, July 20, 1990


    An era ended last week. With the abrupt resignation of
Justice William Brennan, the court that Chief Justice Earl
Warren led into an age of liberal judicial activism passed into
history.

    As the most influential survivor of that panel, Brennan
waged a sometimes lonely fight over the past two decades to
stem a growing conservative tide in the Supreme Court. Using
both his intellect and his gregarious personality, he tried --
not always successfully -- to slow the steady erosion of the
landmark decisions on civil liberties that he had written or
helped shape. His departure, which may be followed soon by
those of the court's two remaining aging liberals, could set the
stage for a total transformation of the high court. It could
become a body more skeptical of -- if not hostile to --
abortion rights, affirmative action, strict separation between
church and state and protection of free speech.

    That prospect inspired jubilation among right-wingers, who
immediately began pressuring George Bush to fill the vacancy
with a conservative. "This is a seminal event in the return of
the rule of law," exulted Michael Carvin, a former Justice
Department official who helped screen judicial candidates for
Ronald Reagan. "If there is anyone who represents the Warren
Court's judicial activism, it is Brennan. He is the intellectual
leader on the left of the court. Some important cases will go
the other way when he is replaced."

    At the other end of the political spectrum, alarms sounded.
Women's organizations promised to battle any nominee likely to
provide the key vote that would overturn Roe v. Wade, the 1973
ruling that established the right to abortion. Referring to the
political onslaught by civil rights groups and liberal forces
that derailed Ronald Reagan's effort to elevate Robert Bork to
the high court in 1987, Democratic consultant Roger Craver
predicted that "the Bork nomination will seem mild compared
with the political mobilization and pressure that will be
brought upon the Senate over this nomination."

    At 84, Brennan remains keen of mind, but his body is ailing.
He fainted about three weeks ago while waiting to board a plane
at Newark airport, but revived and went on to take a
Scandinavian cruise. After his return to Washington, however,
doctors told him he had suffered a mild stroke and urged him
to ease up, advice Brennan took. On Friday night he sent a
hand-delivered letter to the White House. Citing "my advancing
age and medical condition," Brennan wrote that he was resigning
"effective immediately."

    The news was radioed to the President aboard Air Force One
as he was flying back to Washington from a campaign trip to
Montana. He termed it "a complete surprise" and added,
unnecessarily, "obviously, his resignation is accepted." One
of his exultant senior advisers was less restrained, declaring,
"It's great news for conservatives and a great political
opportunity for the President."

    That is undeniable. As was Reagan, who appointed three
conservative Justices -- Sandra Day O'Connor, Antonin Scalia
and Anthony Kennedy -- Bush is in a position to pacify the
restive right and propel the court more speedily on its current
course. With two other Justices, Thurgood Marshall, 82, and
Harry Blackmun, 81, in fragile health and rumored ready to
follow Brennan into retirement, the Bush imprint on the high
court could become every bit as significant as Reagan's.

    Bush has been preparing for that possibility almost from the
day he took office. He asked his aides then to assemble
dossiers on potential appointees. At 8 a.m. on Saturday, a team
led by Attorney General Dick Thornburgh, White House counsel
C. Boyden Gray and chief of staff John Sununu met with Bush to
sort through those names. Bush had declared on Friday, "I want
somebody who will be on there not to legislate from the bench
but to faithfully interpret the Constitution. So that gives me
a wide latitude." During his 1988 campaign, Bush was less fuzzy
about his criteria, promising to choose judges "who will show
more compassion for the victims than they do for the criminals."

    For the White House, Brennan's resignation could not have
come at a more propitious time. The President has angered the
Republican right by backing away from his "no new taxes" pledge
and by showing a willingness to compromise on a new civil
rights bill aimed at softening recent high-court rulings that
make it more difficult for minorities to win discrimination
cases against employers. Bush's appointment of a staunchly
conservative Justice "could solve a lot of problems for us,"
said a top presidential political adviser. "This is an issue
where he could easily and naturally make a choice that will
appease the conservatives. It's the one thing they really care
about."

    At the top of the right-wing agenda is the repeal of Roe v.
Wade. O'Connor, the court's only woman, has seemed sympathetic
to such a reversal but reluctant to provide the decisive vote
in a court split 5 to 4 on the issue. But if another
anti-abortion Justice joined the bench, O'Connor could take
refuge in a 6-to-3 majority.

    Brennan, an Irish Roman Catholic and Democrat, was plucked
from the New Jersey Supreme Court in 1956 by Dwight Eisenhower,
who hoped that the nomination would help undermine Democrat
Adlai Stevenson's liberal challenge to his bid for a second
term. Three years earlier Eisenhower had appointed Warren, the
Republican Governor of California. He later pointed to Warren
and Brennan as two of the "biggest mistakes" he had made.

    Brennan, who sprinkled his off-bench conversations with
profanity and wrote crisply clear opinions, had an unusually
collegial approach to finding the often elusive fifth vote
needed to support his views. He would sometimes dispatch his
law clerks to find out from their fellows what points bothered
other Justices about his position. Then, in early drafts, he
would deftly tailor his arguments to overcome their objections.
His sharply honed writing often carried the day.

    Arriving on the court shortly after the 1954 Brown v. Board
of Education decision that struck down racial segregation,
Brennan joined the judicial march toward civil rights. When
Arkansas Governor Orval Faubus tried to block the entry of nine
black students to Little Rock's Central High School in 1957,
Brennan shaped a unanimous decision that "no state legislator
or executive or judicial officer can war against the
Constitution without violating his undertaking to support it."

    Ever vigilant against police excesses, Brennan castigated
his colleagues for their refusal in 1981 to review a suit
brought by lawyers for a 13-year-old girl who, during a sweep
to detect drugs, had been humiliatingly sniffed by police dogs
in her classroom, then strip-searched. He denounced the action
as "a violation of any known principle of human decency."

    Brennan's broad interpretation of the right to free speech
led him to what is generally considered his most famous
decision: New York Times Co. v. Sullivan, which requires public
officials to prove "actual malice" in filing libel suits
against publishers and broadcasters. Last year Brennan crafted
the majority opinion for a 5-to-4 court decision that upheld
the constitutional right to burn the American flag as a form
of political protest.

    But Brennan admits that he stumbled in his effort to define
obscenity. One of his earliest opinions, in 1957, said an
expression was not protected by the First Amendment if "to the
average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to
prurient interest." But in 1973 he conceded that all such vague
wording led only to "hopeless confusion." He recently told New
Yorker writer Nat Hentoff, "I finally gave up. If you can't
define it, you can't prosecute people for it."

    Brennan never gave up, however, in fighting the death
penalty, advocating affirmative action to correct racial wrongs
and defending the one-man, one-vote principle to define state
and local election districts. Yale Kamisar, a University of
Michigan law professor, calls Brennan "one of the most
effective Justices of all time. He could write with power and
style, and he had enormous influence." Says Columbia law
professor Vincent Blasi: "There have been great dissenters, such
as Oliver Wendell Holmes, and great leaders of court
majorities, such as John Marshall. But Brennan was the only
Justice in the court's history to excel in both roles."

    Speculation immediately focused on a wide range of possible
replacements. Among the most prominent: U.S. Solicitor General
Kenneth Starr; U.S. Trade Representative Carla Hills; two Fifth
Circuit Appeals Judges, Edith Jones of Houston and Patrick
Higginbotham of Dallas; and Thornburgh. Bush also has given
Gray a list of at least three Hispanics he wanted checked out
as possible Justices.

    Among Bush's closest advisers, one faction, led by Secretary
of State James Baker and Treasury Secretary Nicholas Brady, may
prod Bush to choose a moderate conservative to avoid the type
of Senate fight that led to the rejection of Bork. They are
expected to argue that since Bush may have a chance to fill
more vacancies, there is no need to antagonize Congress in an
election year.

    At week's end, however, Bush insisted that he was "not
afraid of a nomination fight." And no matter whom he selects,
he may get just that. Conservative expectations are running
high. Liberals, consumed by foreboding, are gearing up for a
battle even as they mourn the departure of one of their
champions.


____________________________________________________________
Strong Opinions from a Wily Jurist


    "The door of the Free Exercise Clause [of the First
Amendment] stands tightly closed against any governmental
regulation of religious beliefs as such. Government may neither
compel affirmation of a repugnant belief, nor penalize or
discriminate against individuals or groups because they hold
religious views abhorrent to the authorities."

    Sherbert v. Verner (1963)


    "Debate on public issues should be uninhibited, robust, and
wide-open, and it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public
officials."

    New York Times Co.v. Sullivan (1964)


    "There can be no doubt that our Nation has had a long and
unfortunate history of sex discrimination. Traditionally, such
discrimination was rationalized by an attitude of `romantic
paternalism' which, in practical effect, put women not on a
pedestal, but in a cage."

    Frontiero v. Richardson (1973)