Moderate justices put stamp on court Conservative era of Rehnquist wanes

July 05, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court has just finished a dress rehearsal for a future that may soon be reality, a new era of moderation no longer symbolized by its identity as "the Rehnquist Court."

Even without a change in its membership -- although that seems to be coming, perhaps in just another year -- the court led by Chief Justice William H. Rehnquist is already offering strong evidence that his style of deep conservatism is not likely to remain the majority style.

Chief Justice Rehnquist has given not only his name to the court, as chief justices always do, but has been able in recent years to draw it deeper into the conservatism he personally has espoused for 20 years as a jurist.

Now, amid rising speculation in legal circles and at the court that he will retire at the beginning of next summer, perhaps along with the court's senior liberal, Justice Harry A. Blackmun, the "Rehnquist era" of conservative domination appears to be waning.

The court, the evidence from the term that closed last week suggests, is not now, and probably is not going to be, controlled by the most committed conservatives -- the ones closest to Chief Justice Rehnquist in philosophy.

The tribunal most clearly is operating now under the moderate influence of three justices: Sandra Day O'Connor, the calming, "balance-wheel" justice who holds the court close to the middle; Anthony M. Kennedy, the conspicuous constitutional scholar with no ideological agenda; and David H. Souter, the two-year justice who already is well on his way to intellectual leadership.

A rather odd tribute to their seeming control, almost any time they choose to exert it, came on the last day of the term in the historic abortion decision, when their jointly written opinion stirred Justice Antonin Scalia into an outpouring of open wrath. It was a slashing gesture of the kind he made against Justice O'Connor alone in the last abortion decision three years ago.

In just one example, Justice Scalia assailed those three for "almost czarist arrogance" for their refusal to overrule Roe vs. Wade -- the 1973 abortion decision that he wants, with considerable passion, to cast aside.

If the court's membership does undergo a change at the end of the next term, the O'Connor-Kennedy-Souter trio seems likely to hold sway over much of the court's work at least in the transition to a new chief justice, no matter who that is.

President Bush, or a different president if Mr. Bush is sent home by the voters in November, may actually have two nominations to make next year.

Over the past several months, the talk of changes -- long focused on Justice Blackmun -- has turned more toward the chief justice. Indeed, on the last day of the just-ended term, the speculation over Chief Justice Rehnquist's future was even more active than it was over a voluntary departure by Justice Blackmun.

In a perhaps telling remark, the 67-year-old head of the judiciary told a cable TV interviewer on C-SPAN last week that, while he liked his job, "I wouldn't want to hold it forever."

Justice Blackmun, who began as a moderate conservative and has become notably liberal on most issues (and was the author of Roe vs. Wade), once toyed with the idea of retiring when he reached 75. He will be 84 in November.

In a separate opinion he wrote in the latest abortion case, he remarked: "I am 83 years old. I cannot remain on the court forever."

That case was decided on a 5-4 vote.

A replacement for Justice Blackmun, if chosen by Mr. Bush, could help turn the court around on the abortion issue. That would occur if two new Bush appointees are recruited as allies by Justice Scalia.

It was clear by the end of the last term, though, that Justice Scalia, who by dint of personality and broad intellect had seemed likely someday to make the court "his," found himself in something of an eclipse. His forays to the most conservative side of major disputes generally had left him short of a majority: He had drawn the dependable support of new Justice Clarence Thomas, the frequent support of Chief Justice Rehnquist, and the fairly frequent support of Justice Byron R. White.

Those four, indeed, were the dissenters in the abortion decision, and they also were together in dissent in two other 5-4 rulings on major issues -- barring prayers at public school graduation ceremonies, and easing the way for more protest marches.

Another measure of the term's trend away from Justice Scalia's potential influence was that he was on the losing end of five of the court's 5-4 rulings on 10 key cases. Justice Thomas, who has made a place for himself as a conservative close beside Justice Scalia, was in dissent in six of those cases.

Those two justices' voting pattern reportedly was mocked by the court's departing law clerks at a recent party, with suggestions in a skit that anyone who won Justice Scalia's vote actually could claim two.

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