Supreme Court without Lions

July 11, 1994

The Supreme Court term that just ended was the most uneventful in 40 years. It rendered only 84 decisions -- the fewest since the 1956. Few of its decisions were either surprising or likely to be considered landmark. It broke no new ground. If there was one surprise, one important development, it was the foreshadowing of the shape of things to come: a center-left bloc of justices that, while not dominant, could be more influential than any other combination.

That bloc was composed of Justices Harry Blackmun, Ruth Bader Ginsburg, David Souter and John Paul Stevens. Messrs. Blackmun and Stevens have been on the left side of the center line for several years. Justice Ginsburg is the new girl on the bloc, so to speak, but was expected to be somewhat liberal. Justice Souter, once considered a moderate-conservative, has been edging slowly leftward almost from the start, and seems to have picked up the pace this term.

Those four justices voted together in 11 5-4 decisions. They lost eight times, because they could never convince one of the three most conservative members of the court -- Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas -- or the moderate Justice Sandra Day O'Connor, to vote with them. Three times they did get the vote of Justice Anthony Kennedy, however. Mr. Kennedy's vote is increasingly becoming the decisive one on the court. He was in the majority more often than any other justice, and was never on the losing side in a 5-4 decision.

Some Democrats believe the center-left group will attract Justice O'Connor in the future, and Justice Kennedy more often, because of the replacement of Justice Blackmun with Stephen Breyer. Judge Breyer is younger, fresher, more learned and more of a pragmatic coalition builder than Justice Blackmun. It is entirely possible that in the next term or two, the court's 5-4 and 6-3 decisions will be more liberal than conservative. That is especially true if Justice Souter does not slow his pace on the path to the left.

Judge Breyer has been touted as the liberal answer to the conservative Justice Scalia -- intellectual and sure of himself. Some liberals have been licking their chops at the prospect of Justice Scalia, who has become an intellectual bully on the court, getting back as good as he gives. Actually, Justice Souter may already be serving that function.

In one case this term, a dissenting Justice Scalia assailed a Souter opinion of the court as "preposterous" and "astounding" among other pejoratives. Justice Souter responded with: "Justice Cardozo once cast the dissenter as 'the gladiator making a last stand against the lions.' Justice Scalia's dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining."

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