A Goodbye and a Flourish

July 04, 1993

What may be the last term of the Supreme Court's "conservative reaction era" ended with a goodbye and a flourish last month. The goodbye was to Justice Byron White, who retired after 31 years on the court. The flourish was a couple of reactionary decisions that upset many precedents -- including fairly recent ones, not just old ones of the liberal Warren Court of the 1960s.

Byron White was the last survivor of Chief Justice Earl Warren's court. A John Kennedy appointee, he moved right and became a member of the conservative bloc on the court. Conservatives won 12 of the 14 decisions decided 5-4 during the 1992-1993 term, and Justice White was usually in those majorities. His first term on the court, he voted with the liberal Justice William Brennan 80 percent of the time. His last term on the court, he voted with the very conservative Chief Justice William Rehnquist 80 percent of the time.

Ironically, in two of the last opinions of the term, involving civil rights and won by the conservatives 5-4, Justice White dissented. Among other dissenters in those cases the most eloquent, we thought, was Justice David Souter. He dissented in most 5-4 decisions this term. He voted with the chief justice fewer times than any other justice except the relatively liberal justices, Harry Blackmun and John Paul Stevens. Justice Souter has been moving left faster than Justice White moved right, and he has become a solid centrist around whom moderate majorities are likely regularly to coalesce beginning next term, assuming, as we do, that a Justice Ruth Bader Ginsburg and any subsequent Bill Clinton nominees will vote with him more often than with the four conservatives.

Conservative Republican presidents had two decades to create the kind of court they praised and promised in campaign speeches -- one that would get tough with criminals, return prayer to schools, halt busing and affirmative action (and, later, abortions). In fact, of the eight Republican nominees on the court, only four consistently look at such issues from such a perspective. But one or another of the other Republicans or Justice White was willing to join them enough times this term so that the court's overall record was still determinedly conservative, if not as conservative as Richard Nixon, Gerald Ford, Ronald Reagan and George Bush envisioned. The civil rights rulings will make it harder for blacks to get elected to high office and to prove employment discrimination. Another ruling lowered the barrier to public support for religious groups. Another denied federal abortion clinics protection from threatening protesters.

The Rehnquist Court demonstrated again this term that it is undeniably "conservative" in one sense. It chose not to settle as many controversies as its predecessors routinely did. It handed down only 107 full-scale decisions this term, the same as in the 1991-1992 term. That is about 20 fewer than the number the court handed down in the terms of the early and mid-1980s.

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