Good For The Left, Now Good For The Right

Cantankerous, angry and shrewd, his final opinion was a fitting coda to the man and a career. In the 1,188th dissent of his 24 years on the court - a l3-page vivisection of the conservative majority led by Chief Justice William Rehnquist - Thurgood Marshall railed against his colleagues' "far-reaching assault" on the Bill of Rights that would "squander the authority and the legitimacy of this court as a protector of the powerless." The object of Marshall's rage was the court's 6-3 ruling last week that overturned two of its own recent decisions on the death penalty. Why the court's about-face? Marshall, joined by moderates Justices Harry Blackmun and John Paul Stevens, said nothing had changed. "Only the personnel of this court did," he wrote. "Power, not reason, is the currency of this court's decision-making."

That's about right. Get five votes on the court and all things are possible. Marshall wouldn't want to hear it, but the irony of his realpolitik complaint is that it applies equally well to prior regimes on the court, including ones he helped lead. Most notably, the liberal court that reigned under Earl Warren from 1953 to 1969 was far more concerned about making correct social policy than searching for neutral principles that would govern the outcome of cases. The chief difference between the Warren and Rehnquist courts isn't judicial activism at all. It's simply who's got the votes - and the conservatives are firmly at the helm now.

There is a difference, of course, in results too. The Warren court used its muscle to expand the rights of individuals against government; it was a force that tended to thwart established power. The Rehnquist court's activism gives the government Feat latitude; it prefers to ratify choices made by those already in power.

When David Souter was appointed last year to succeed William Brennan Jr., the godfather of court liberals, he gave the conservatives the pivotal fifth vote. Souter joined a caucus with Rehnquist and Justices Anthony Kennedy, Sandra Day O'Connor and Antonin Scalia. In some cases, Justice Byron White, the court's only remaining Democratic nominee (by John Kennedy in 1962), provided a sixth vote, permitting the conservatives to write even more sweeping opinions. "This is the counterrevolution we've been watching for," says Columbia University law professor Vincent Blasi. One's view of it "depends on whether it's your ox being gored."

The court has not been entirely monolithic. There were cases this term in which the conservative juggernaut couldn't muster a majority. In particular, the court gave a broad reading to "equal protection." The justices ruled that fertile women cannot be barred from hazardous jobs, and that prospective jurors could not be excluded because of their race. The court also held that the federal Voting Rights Act covers the election of state and local judges. That expansive view, previously applied to legislative--and executive-branch elections, could trigger hundreds of lawsuits by minorities in the 41 states that elect judges.

But apart from those notable exceptions, the court did turn right face and proceeded at double time. The majority routinely interpreted federal statutes and the Constitution narrowly, tending to defer to the legislative and executive branches, and to the states over the federal government. "You're looking at a highly deferential institution," says federal appeals court Judge Frank Easterbrook, a potential successor to Marshall.

For the first time perhaps since the 1930s, the conservatives this year were feeling their juridical oats, taking all sorts of liberties with accepted notions of judicial conservatism: respect for prior rulings, skirting hard questions when possible, avoiding collisions with the other branches. So much so that White, usually a reliable vote in the conservative coalition, found himself at times siding with the liberals because he couldn't stomach the alternative. Prodded by the intellectual showmanship of Scalia and pulled by the will of Rehnquist, the court reversed precedents left and, well, left. In the capital case that so infuriated Marshall, Payne v. Tennessee, the majority was almost cavalier in its dismissal of its earlier decisions; in those 1987 and 1989 rulings, the court held that prosecutors at sentencing hearings couldn't introduce evidence of the character of a murder victim or the effect of the crime on survivors. Rehnquist wrote that adherence to precedent "is the preferred course," but "not an inexorable command." From there, he noted simply that the earlier decisions were reached "over spirited dissents" and did not involve property or contract rights, where the need for certainty is paramount. Souter, who expressed so much respect for precedent during his confirmation hearings, was part of the majority.

In addition to its flip-flop in Payne, the high court threw out earlier rulings protecting the rights of defendants, mostly from the Warren era, on coerced confessions, search warrants and the scope of federal jurisdiction in criminal appeals. In the case of the latter, the chief justice displayed a zeal worthy of any good legislator. Last year Rehnquist lobbied Congress to restrict the habeas corpus rights of state prisoners to bring constitutional challenges in federal court. His primary purpose was to halt the flood of death-penalty appeals that have stalled capital punishment for more than a decade.

Congress rejected the proposed restrictions, as did a group of lower-court judges. Rehnquist's solution? Rather than abide by the legislative result, he and his court colleagues accomplished the reforms in two 6-3 rulings this term. In one, the court said that a procedural blunder by an inmate's lawyer in state court precluded the inmate from any federal appeal. "This majority is as willing to act as the Warren court," says University of Virginia law professor A. E. Dick Howard. Counters Robert Bork, the former federal judge and defeated court nominee: "Talk about judicial restraint is troublesome. What's important is that you get it right."

Even more aggressive than the high court's criminal-law rulings were its decisions involving the First Amendment. In one, the justices held that states and municipalities could ban nude dancing in bars. Public concern for morality, Rehnquist wrote for a 5-4 majority, outweighed the dancers' right to express themselves. Given the court's distaste for obscenity, the decision doesn't seem surprising. But this wasn't a case about obscenity, which the court has always found to be wholly outside the First Amendment's reach. Here, notes Stanford University law professor Gerald Gunther, "the court is saying that public morality trumps legitimate rights of expression. That's never happened before."

In the term's most controversial decision, Rust v. Sullivan, the court by a 5-4 vote upheld federal regulations barring all discussion of abortion in family-planning clinics that receive government money. Doctors had no free-speech rights to advise patients. The regulations, authorized by a 1970 act of Congress, were issued in 1988 by the Reagan administration. They represented a 180-degree change in rules that had been in effect for the prior 18 years that required clinic employees to provide abortion information. While the Supreme Court acknowledged the ambiguity of the 1970 legislation - normally enough to strike down the regulations subsequently passed - it nonetheless went on to consider the constitutional question. That was more than even O'Connor could stand. Dissenting, she scolded her brethren for violating "a fundamental rule of judicial restraint."

Rehnquist, who wrote the Rust opinion in May, justified it on the ground that administrative agencies deserve deference when statutes are ambiguous. Yet, two months earlier, Rehnquist refused to defer to a different agency in a case about the application of U.S. antidiscrimination law overseas. "Both these decisions can't be right," says Duke University law professor Walter Dellinger. "This court has abandoned any pretense of neutrality."

Against that backdrop, the departure of Thurgood Marshall is of more symbolic meaning than anything else. The last, Feat liberal on the bench is gone. In terms of results, it doesn't matter much. The conservatives - average age, 60 - own the farm, and the ideological horses are already out of the barn. Marshall seemed to recognize as much when, in his Payne dissent, he offered a list of endangered precedents "now ripe for reconsideration" by the emboldened court, including those which approved minority set-asides for government contractors, the exclusion of insane murderers from execution, the bar on government aid to parochial schools and, of course, Roe v. Wade. All that really happens, then, when Marshall is replaced by someone more conservative is that the Rehnquist bloc will pick up more steam.

That's a lot for the liberals to lament. But it's hard to be sympathetic. Thirty years ago it was their turn to bask in the glow of judicial activism, Warren style. In that era, the majority justices would peer into the Constitution and create new rights, without answering conservative critics who demanded to know the legitimate sources for their unprecedented forays. "One of the saddest lessons of recent decades," says Gunther, "is that judges have given up their explaining function because they just don't believe in it. It's only the result that matters."

Gunther and other proponents of neutral adjudication say it's more than a theory. They point to John Marshall Harlan as an example of a justice who decided cases independent of results. Serving on the court from 1955 to 1971 (succeeded by Rehnquist), his votes defied political labeling. He dissented in the cases creating Miranda warnings and upholding the publication of the Pentagon Papers. Yet he voted to recognize a constitutional right to use contraceptives (the forerunner to Roe) and to uphold a protester's right to wear a jacket bearing the words, "F - the Draft." Harlan clearly believed that the Bill of Rights was adopted to protect individual freedoms from tyranny by the majority; at the same time he understood the vast, unbridled power of the unelected, life-tenured federal judge, who had to rein in personal proclivities. Liberals and conservatives alike praise Harlan's approach. "That is what's missing from this court," Blasi says.

The danger in a Supreme Court that rests on realpolitik alone is that the institution will lose its legitimacy. Unlike the other branches, the court succeeds because it commands respect and is perceived to be neutral, even if its rulings are unpopular at a given moment. The Rehnquist court will not likely soon face a crisis of legitimacy. Its decisions are too much in step with public opinion - hardly surprising given its willingness most of the time to defer to popular government. But what happens down the road when the court once again stops ratifying the popular will and instead votes to protect unpopular positions? Will the public accept - and obey - decisions it doesn't like, if the life of the law is just politics and power?

The American system has forever boasted it is "a government of laws and not of men." Trouble is, that's not true. In the ideological pitch and roll represented by the Supreme Court's journey from Earl Warren to William Rehnquist, there is a kind of poetic justice: he who lives by judicial activism dies by judicial activism. The symmetry seems in the nature of things, the balance quite right. But pity the Constitution.

Death rows are full but few executions have actually occurred.

The court will continue to cut back on rights of condemned inmates to appeal. Uncertain whether more will walk the last mile.

For 50 years, the court has struck down most state restrictions on expression.

The new majority finds reasons to approve limits, most recently in cases involving nude dancers and outspoken lawyers.

THE MORE THINGS CHANGE.;

The activist Warren court of the '60s and the activist Rehnquist court of the '90s share personalities and role players.

Brilliant and utterly self-confident, William O. Douglas (top) and Antonin Scalia represent the polar extremes of judging. Douglas championed the individual. Scalia defers to majorities.

Earl Warren (top) was everybody's pal. William Rehnquist is more aloof. But both drove their courts into the fast lane of judicial activism. Warren's became an engine of liberal reform. Rehnquist's seeks to roll back those changes.

Byron White has been a Supreme in both eras, and he's fit in just fine. JFK put him on the court in 1962 and he moderated some Warren excesses. Today, he does the same for Rehnquist.

The court has already made it harder for minority and women workers to bring bias lawsuits.

With Marshall gone, the majority will be even more receptive to claims of reverse discrimination.

The Supreme Court for the 1990s is the most conservative in a generation. The lineup, with one slot to be filled by President Bush:

Nixon's revenge. Leader of the counterrevolution. Aching back: will he quit next?

Last of the liberals. Desperately wants to preserve Roe v. Wade.

The most obscure justice, the fellow in Bork's seat. A reliable member of the Rehnquist bloc.

A centrist, if such a thing exists anymore. Roe may yet rest in her hands. The next chief?

Rashomon of the Constitution: to the liberals, he's the Prince of Darkness; to conservatives, he's the deity.

So much for the Stealth nominee. O'Connor in a three-piece suit.

A strong Marshall ally recently, but still the court maverick.

Senior in tenure, and the only justice named by a Democrat.