An Exceedingly Conservative Court

July 08, 1991

Two of the most symbolic decisions of the liberal "Warren Court" were in the field of criminal law. The "exclusionary rule" limiting police searches and seizures was applied to the states 30 years ago and the "Miranda warning" limiting police use of some confessions was enunciated 25 years ago. This term the Supreme Court of Chief Justice William Rehnquist greatly weakened both. In a 5-4 decision, the court said coerced confessions could be used in court in some instances. In a 6-3 decision the court approved some warrantless searches without probable cause.

The new decisions symbolize what the Supreme Court now is. It is a court strongly interested in criminal matters. Nearly a third of this term's decisions involved criminal law, about half again as many as traditional. It is a court relentlessly pro-state, not pro-individual. It is a court little concerned with precedent. It is a court with a solid majority to work its will. The 6-3 decision was more typical of the term than the 5-4 decision.

This is new, and is directly traceable to the replacement of liberal Justice William Brennan with conservative Justice David Souter. In the 1990-1991 term, we saw the arrival of what Dean Geoffrey Stone of the University of Chicago Law School called "an exceedingly conservative court."

A very conservative majority that feels unrestrained by precedent, especially in dealing with constitutional questions, is FTC disturbing to contemplate for liberals who can expect to see many more of the legal landmarks they have long cherished disappear. Conservatives who believe that Supreme Court decisions should settle things for at least some reasonable length of time (as did Justice Lewis Powell, who retired in 1987) also should be concerned. This court this term not only overturned precedents from the 1960s. It reversed decisions it disapproved of that were only four and two years old. This invites skepticism about the court's claim that it is not concerned with results, only with reading the true meaning of the Constitution and the law. Such skepticism can undermine conservatives' faith in the court.

The most pertinent question among court-watchers is, how fares Roe vs. Wade? There was no real clue this term. There were four known opponents of a constitutional right to abortion before the term began. Justice Souter was an unknown. He voted with liberals in a women's rights employment case that involved some of the same concepts as the right to an abortion. Then he voted with conservatives in allowing the government to prevent certain health care workers from even discussing abortion with clients.

This conservative court is going to get more so with the replacement of Thurgood Marshall by Clarence Thomas or another conservative. Dean Stone foresees "the most monolithically ideological court in the memory of any living person."

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