Has the Rehnquist Court Changed?

December 26, 1991

The 1991-1992 term of the Supreme Court is the sixth under Chief Justice William Rehnquist. The court has changed a bit but not as much as some expected, judging from the Harvard Law Review's annual study of the term.

The statistics of the 1990-1991 term were bound to be different from those of Chief Justice Warren Burger's last term, 1985-1986, because the personalities on the court, the times and the issues are different.

When Mr. Rehnquist was promoted from associate justice to chief justice in 1986, he was replaced by Antonin Scalia. Not much change was expected there. Two conservatives. But in 1990-1991, Justices Scalia and Rehnquist voted together only 73.1 percent of the time. In 1985-1986, Justices Rehnquist and Burger had voted together 91.7 percent of the time.

A shift was predicted when moderate conservative Justice Lewis Powell retired in 1987, to be replaced by the conservative Anthony Kennedy. But Justices Powell and Rehnquist voted together 87.7 percent of the time in 1986; Justices Rehnquist and Kennedy voted together only 82.1 percent of the time in 1990-1991.

Thus, the court would appear to have turned less conservative, at least marginally, based on the statistics.

After the above changes, liberal Justice William Brennan retired in 1990 and was replaced by the conservative David Souter. Justices Brennan and Rehnquist voted together only 43.9 percent of the time in 1985-1986. Justices Rehnquist and Souter voted together 82.5 percent of the time last term.

Most Supreme Court observers expect that the same pattern will be found this term in the voting of Clarence Thomas compared to that of the man he replaced, Justice Thurgood Marshall, who retired last summer. Justice Marshall voted with Mr. Rehnquist only 48.5 percent of the time last term. Justice Thomas is expected to vote with him within the percentage range of the other conservatives on the court -- low 70s to low 80s.

Statistical studies can be misleading if read too precisely. The mix of the cases before the court each term varies. Still, looked at over a span of time, statistics give an interesting and valid portrait of the institution. Consider these numbers: Last term, for the 21st straight time, the justices sided with the government against individuals in a majority of the cases. This is a break with the court of the 1960s. It is a direct result of the fact that in 1969, Republican presidents began a string of Supreme Court appointments that has now reached 10 straight without an intervening Democratic nominee.

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