A Ho-Hum from On High

JAMES J. KILPATRICK

July 13, 1991|By JAMES J. KILPATRICK

WASHINGTON. — It was, for the most part, a ho-hum term of the Supreme Court that ended on June 27. The court handed down 107 signed opinions, but not more than half a dozen had much significance. The rest were mainly for the lawyers.

The justices frittered away a vast deal of time and energy in writing dissenting and concurring opinions. They displayed unseemly petulance toward poor petitioners and they exhibited unbecoming haste in hustling capital prisoners toward the gallows.

The term will be remembered for a few opinions dealing with abortion, criminal law and the election of judges. The big news, of course, came with the retirement of Thurgood Marshall. We will have other big news when Congress takes up the nomination of Clarence Thomas to succeed him.

When David Souter came on the court in October, it was widely assumed that he would cement the conservative bloc so solidly that we would witness a stream of 6-3 votes in divisive cases. Thurgood Marshall, Harry Blackmun and John Paul Stevens, we supposed, would find themselves constantly on the losing end. It didn't work out that way.

True, old alliances on the bench generally held together. Justices Marshall and Blackmun voted identically in 50 of the 65 cases in which the court divided. Chief Justice William Rehnquist and Justice Sandra Day O'Connor, for their part, voted alike in 48 of them. Justice O'Connor found a new best friend in Justice

Souter; they disagreed in only 11 of the 98 cases in which they both participated.

Justice Souter arrived as an enigma. The reputation remains unchallenged. He was expected to provide the decisive swing vote for the conservative bloc in really close cases. The term saw 19 cases decided 5-4. Justice Souter provided the swing in only nine of them.

Justice Souter has yet to get the feel of being one of the 12 most powerful individuals in our government. (The others, of course, are his eight colleagues, the president, the speaker of the House and the majority leader of the Senate.) His slight frame uneasily bears the toga. Justice Souter wrote only seven opinions for the court. None was of consequence. He wrote one dissenting opinion and two concurring opinions. None of these mattered either. The newest justice has an orderly mind, but he dips his pen in library paste.

Thinking of separate opinions: These ego trips are getting out of hand. Out of curiosity, I checked Volume 179 of the Supreme Court Reports, covering the term of 1890-1891. The first 20 reported cases that year saw only two written dissents, and one of them was but a single paragraph long. Sixteen of the 20 cases were unanimously decided.

That collegial comity is long gone. The justices have turned into medieval theologians, counting angels on the heads of pins. This was the headnote on a Michigan case having to do with the rights of non-union employees:

''BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, IV-B (except for the final paragraph), IV-D, IV-E, and IV-F, in which REHNQUIST, C.J., and WHITE, MARSHALL, and STEVENS, JJ., joined, and an opinion with respect to Parts III-A and IV-A, the final paragraph of Part IV-B, and Parts IV-C and V, in which REHNQUIST, C.J., and WHITE and STEVENS, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part, in which O'CONNOR and SOUTER, JJ., joined, and in all but Part III-C of which KENNEDY, J., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part.''

This is juridical goulash. Such peacock strutting is mainly an exercise in vainglory. Justice Stevens cannot restrain himself (22 written dissents, five written concurrences). Justice Scalia is equally enchanted with the sound of his own mellifluous voice (12 written dissents, 15 written concurrences).

This is understandable in Justice Scalia's case, for he is by far the most incisive writer on the court. His stuff is always a pleasure to read. Even so, the goulash provides indigestible fare for lower courts, and the stream of dissenting opinions encourages litigants in the jurisprudential school of try-us-one-more-time.

With Justice Marshall's departure, only Justices Blackmun and Stevens remain to flutter their left-wings in the liberal dovecote. Conservatives will be pleased to see Judge Thomas confirmed, but our joy will be tempered. We won't have Justices Brennan and Marshall to kick around any more, and covering the court won't be nearly so much fun.

James J. Kilpatrick is a syndicated columnist.

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