Republican justice

Carl P. Leubsdorf

July 08, 1991|By Carl P. Leubsdorf | Carl P. Leubsdorf,Washington bureau chief of the Dallas Morning News.

MY MOST vivid childhood memory of the Supreme Court was the 'Impeach Earl Warren' signs which lined Highway 17 near Savannah," Judge Clarence Thomas recalled last week.

"I didn't quite understand who this Earl Warren fellow was, but I knew he was in some kind of trouble," Thomas added.

Chief Justice Warren, of course, was "in some kind of trouble" among white Southerners for the 1954 school desegregation decision, one in a series of landmark rulings over his 16-year tenure that changed the conditions under which black Georgians like Clarence Thomas lived.

They included decisions that broke down the legal barriers to school desegregation, protected the rights of all individuals to vote and transformed his home state's government by requiring "one man, one vote" and barring a "county unit" system that institutionalized geographical inequality.

In all of these decisions and in many others that the court has issued over the past three and one-half decades, a central premise was the court's desire to protect the rights of individuals, often against the authority of the state or the power of the majority.

Thus, the court sided with those who had been denied access to public facilities or felt their rights were infringed by such things as public school prayers. And the individuals whose rights it sought to protect ranged from the Clarence Thomases, who couldn't use Savannah's white-only public library, to criminal suspects to women seeking abortions.

In time, the court's reversal of the decades of judicial restraint that had marked the years before the mid-20th century was so sweeping that it was bound to rile enough people as to create a political counterforce.

The counterforce began with the people who put up those "Impeach Earl Warren" signs on Highway 17 and expanded as the court stood up for such unpopular elements of society as flag burners and atheists.

And perhaps the two issues that have given critics their greatest impetus have been the 1973 Roe vs. Wade decision to legalize abortion and the court's persistent effort to protect minority employment rights through aggressive affirmative action programs.

For more than two decades, the movement to curb the court has gained its political legitimacy as a central tenet in the campaigns of Republican candidates from Richard Nixon to George Bush.

But it has taken four GOP presidents more than two decades to implement what they promised. Now, with the departure of the last of the Warren court's powerful liberal voices, William Brennan and Thurgood Marshall, that battle is finally over.

Still, one of the beauties of the American political system is its inherently dynamic nature. And it has been evident for some time that, just as the court's liberal course in the 1950s and 1960s stirred a conservative reaction, so is its increasingly conservative bent now creating a liberal response.

That has been nowhere more striking than over the issue of abortion, an emotional subject on which each side claims to be protecting the rights of different individuals, women, in the case of abortion rights advocates, and the unborn in the case of abortion rights foes.

While Thomas' views on affirmative action seem pretty well established in his outspoken speeches and writings as chairman of the Equal Employment Opportunity Commission, his views on abortion are not at all clear. He is a devout Catholic who once studied for the priesthood. But he is also a man who once noted he survived segregation "not only without the active assistance of government but with its active opposition." That could make him less a supporter of government rights and powers than other court conservatives.

His position on abortion could be crucial. Four justices -- William Rehnquist, Antonin Scalia, Anthony Kennedy and Byron White -- are believed set to overturn Roe vs. Wade, while the positions of two others -- Sandra Day O'Connor and David Souter -- appear more ambiguous. Only Harry Blackmun and John Paul Stevens remain firmly in favor of abortion rights.

The issue could come before the court next year, right on the eve of the 1992 presidential election. Already, some Republicans are jittery over the impending success of their party's long effort to overhaul the court, fearing a decision to overturn its abortion position could incite a voter rebellion against the GOP next year.

After all, though the numbers vary with the way the question is put, polls still show that a majority favors a woman's right to choose an abortion, and that only a small minority favors banning it under all circumstances.

One of the ironies of the Thomas appointment is that the boy who saw signs advocating Earl Warren's impeachment may inadvertently help to stir a similar enmity against the current conservative court.

Carl P. Leubsdorf is Washington bureau chief of the Dallas Morning News.

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