With no liberal activist left, 'new court' is ready to review major precedents

October 06, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The SunWashington Bureau of The Sun

WASHINGTON -- For the first time in a half-century, the Supreme Court's marble facade is getting a scrubbing. But the court's new look as another term opens tomorrow is even more visible inside: For the first time in generations, there will be no liberal activist on the bench.

It was not long after the Supreme Court moved into its brand new marble temple on Capitol Hill in October 1935 that President Franklin D. Roosevelt began naming the justices who in time would form the core of the activist and liberal "Earl Warren Court."

Now, nearly a quarter-century after Chief Justice Warren himself retired, the last of the down-the-line liberal justices has departed. Justice Thurgood Marshall, 83, retired last Tuesday; he has moved his chambers up one floor, next to those of another Warren Court liberal, retired Justice William J. Brennan Jr., 85.

The court that comes back into public session tomorrow -- the court headed by Chief Justice William H. Rehnquist and dominated by conservatives who share the bench with just two now-and-then liberals -- is widely expected to give the Constitution and federal law new and quite conservative meanings.

It will have early opportunities to redefine school desegregation law, make a new start on government-religion relations, say something new on abortion rights, give states more chance to get death sentences for murderers, get deeply into the "political correctness" dispute by ruling on some kinds of "hate speech," and step into the middle of the deep social conflict over smoking and cancer.

The "new" court is not quite completed yet -- just as the court's exterior marble-scrubbing project will not be finished by opening day. The seat at the right end of the bench -- the place of the most junior justice -- will be empty on opening day, and probably will stay empty for the next two weeks.

But, later this month, it is likely to be filled by a justice with only childhood links to the court's Earl Warren era. The soon-to-be justice, Clarence Thomas, now 43 years old, has said his "most vivid childhood memory of the Supreme Court was the 'Impeach Earl Warren' signs which lined Highway 17 near Savannah."

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

The trouble, of course, resulted from the Deep South's resentment of the liberal constitutional revolution the Warren Court had wrought.

Judge Thomas, who was celebrating his 21st birthday the day Chief Justice Warren retired in 1969, is expected by many who have followed his career to vote very differently from Justice Marshall, and very differently from the long line of liberals.

He, like Justice Marshall, is black. They are the only two blacks ever to have been named to the court. But almost anyone who knows either is convinced that they will be very different justices.

Justice Marshall, a Baltimore native, had been a civil rights lawyer, a prominent figure in the civil rights revolution that the Warren Court helped make possible and could always be counted on to take the most liberal position on virtually every case before the court.

Ironically, the first case the court will hear without Justice Marshall on the bench will be a school desegregation case, one from the Atlanta suburbs, testing how long formerly segregated public school systems must remain under court-ordered desegregation plans.

Mr. Thomas will not be on the bench in time to hear that case. How he would vote on it, if he could, is unknown.

The new justice-to-be has made his reputation as a prominent figure among America's new cadre of black conservatives, and his public record in recent years has led most observers to speculate that he will add strength to the already controlling bloc of conservative justices.

Born into poverty in rural Georgia in 1948, himself a youthful victim of racism, Mr. Thomas is going to the court with the support of many members of the Senate who have said they "hope" his roots will count for more than his conservative activism in the administration of President Ronald Reagan.

His nomination comes up for a final vote in the Senate Tuesday evening; after two days of debate in the Senate last week, there is no sign of opposition sufficient to defeat him, although he may win approval with more negative votes than any prior justice.

He will become the eighth sitting justice to have been named by Republican presidents who had vowed to turn the court away from its liberal past.

The only member of the Warren Court still serving is Byron R. White, the last justice to have been chosen by a Democratic president. But Mr. White, who has been on the court since 1962, has become a regular voter within the court's controlling conservative bloc.

If liberal votes are cast by current justices, they most likely would come from Harry A. Blackmun or John Paul Stevens; neither of them, however, is predictably liberal on very many issues.

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