All Things Come to Those Who Wait

October 10, 1991

The Supreme Court that Clarence Thomas was expected to join yesterday is one conservatives have dreamed about for 23 years. Even without a ninth member (who is likely to be of the same philosophical leaning as Judge Thomas, if not Judge Thomas, himself), this is a court more conservative than any since the Nine Old Men of anti-New Deal notoriety broke up in the late 1930s.

When a new conservative joins the court in the days or weeks ahead, it will be more reliably conservative than the Warren Court of the late 1950s and early 1960s was reliably liberal. There will then be a 7-2 conservative-liberal lineup, meaning that even when two conservatives stray from the straight and narrow path, the result will still be the same. In fact more conservative than otherwise. The five core conservatives do not need to narrow their opinions to get moderate conservatives to join them to create a majority anymore.

This court probably began this week to achieve the goals of the conservative agenda that presidents Nixon and Reagan could not achieve legislatively or administratively. The eight justices heard a case from Georgia that could lead to an end of school busing to achieve desegregation. Conservative Republicans have failed in their attempts to do that directly in the political arena for two decades. Democrats in Congress have prevented it.

But all things come to those who wait (if while waiting they elect presidents pledged to appoint their kind of justices to the Supreme Court).

Conservatives have also lost legislative attempts to overcome an old Supreme Court-imposed obstacle to church-state involvement. A Rhode Island case on this year's docket involves the question of allowing a prayer at public school graduations. To allow it the court would have to craft a new rule allowing many other such church-state activities. Many liberals believe this court will do that.

Republicans have tried unsuccessfully to ban abortions by law. There is no abortion case on this year's Supreme Court docket that would allow a reversal of Roe vs. Wade (one could be added later), but there is a case involving anti-abortion demonstrations in Virginia that may very well be decided in favor of the demonstrators. That would be a morale booster for the anti-abortionists, encouraging them in the streets and in state legislatures.

In these three areas, and in the areas of criminal law and free

speech, which will also be involved in this term's activity, there are liberal to moderate precedents left over from the Warren Court era and the moderate Burger Court era of the 1970s. But Chief Justice William Rehnquist and Associate Justice Antonin Scalia, the conservatives' leaders, made it clear -- unmistakably so -- last term that they regard such precedents as born to be broken. Without or with a Justice Thomas, expect to hear the sounds of a lot of precedents being broken this Supreme Court term.

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