Supreme Court justices get on-the-bench training

October 02, 1994|By Lyle Denniston | Lyle Denniston,SOURCE: Lyle Denniston of The Sun's Washington BureauWashington Bureau of The Sun

WASHINGTON -- With much of its experience and boldness drained by high turnover, a very "junior" Supreme Court opens a new term tomorrow facing a rare assignment for an institution usually known for its seniority: on-the-job training.

After years of being dominated by justices with many years of service, the court seems nearly brand-new: seven of the nine justices have taken their seats in the past 13 years, and five of them -- a complete numerical majority -- have been seated in the past six years.

It also is no longer controlled by justices with strong wills and ambitious ideological agendas, but rather by an ever-expanding middle bloc of moderates who shift this way and that, who are rarely predictable, seldom daring and seemingly always devoted deciding even major cases in as limited a way as possible.

Chief Justice William H. Rehnquist, in a public ceremony Friday on the eve of his 70th birthday, took note of "the rapid rate of change" on the court in recent years and the fact that he has just become the senior justice in service.

Wryly, he said: "It makes me feel very ancient indeed."

He spoke just before swearing in new Justice Stephen G. Breyer, who had his 56th birthday in August and whose arrival lowered the average age of the justices from 63 to 60. Only two, Mr. Rehnquist and John Paul Stevens, are 70 or over. Mr. Stevens, at 74, is the oldest.

Georgetown University law professor Vicki C. Jackson, referring to "the relative newness of the court," said, "It is in for a period of adjusting, with people bumping around and finding out" how to react to one another.

There are other vivid indications of that "relative newness":

* Chief Justice Rehnquist has more time on the bench than all six of the most junior justices combined -- his 23 years to their total of 22.

* The average length of service of all nine justices is just 8 1/2 years, and Chief Justice Rehnquist himself has headed the court for just eight years after being promoted during the Reagan administration.

* The justice who now has risen to third in seniority -- Sandra Day O'Connor -- took just 13 years to reach that point; Chief Justice Rehnquist did not achieve that rank until he had been on the court 20 years.

'Narrow' vision

It is not a court, however, that is likely to exhibit the brashness of youth, according to many who follow its history closely.

"It is," American Civil Liberties Union legal director Steven R. Shapiro said, "a court whose general approach to the law is incremental and cautious. Its opinions and its constitutional vision are relatively narrow."

And, he and many other observers have noted, it is a court that is giving itself comparatively little to do.

Although the court has volunteered to take on in the new term some disputes heavy with importance and mired deep in controversy, such as the constitutionality of term limits for members of Congress, it has not opted to rule on very many overall.

Unless it steps up the pace of adding to its caseload, the court may decide fewer than 80 disputes by next summer -- about half of the work it was turning out as recently as the early 1980s.

"This is a court," said the ACLU's Mr. Shapiro, "that will deal with controversy when it must, but it is not seeking it out."

Diminished role

The court, some analysts say, is simply scaling itself down to the diminished role that many Americans want.

Georgetown law professor L. Michael Seidman suggested, somewhat gloomily, "There is no political constituency for having an important Supreme Court any more; there is a broad consensus that the court should no longer play a central role in American political life."

Being led by a bloc of centrists gives the court as a whole a personality that seems to reflect that of new Justice Breyer who, in Mr. Seidman's words, is "analytical, careful and cool."

Said Richard G. Taranto, a lawyer in a Washington firm specializing in cases before the court: "Consumers of Supreme Court opinions seeking clarity are not getting it. This court

seems to look for very narrow, fact-bound ways to decide cases. There is an unwillingness to lay down broad principles."

Moderate bloc

The middle bloc of the court remains anchored in Justices O'Connor, Anthony M. Kennedy and David H. Souter -- all chosen by Republican Presidents Ronald Reagan or George Bush, both of whom were determined to diminish the court's role in the nation's public life by naming judges willing to leave more major problems for the politicians to solve.

President Clinton's first nominee, Justice Ruth Bader Ginsburg, lined up comfortably with that bloc much of the time in her opening year on the court, according to many court experts.

And new Justice Breyer is expected to do so, too.

No 'liberal wing'

"There is no longer a liberal wing," Mr. Shapiro concluded flatly. Professor Seidman speculated that Mr. Clinton's two nominees are unlikely to do much to pursue a liberal agenda pent up during 12 years of court appointments by conservative Republican presidents.

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