Voting control shifts to right on high court

July 02, 1995|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- With a combination of power and solidarity seldom seen on the modern Supreme Court, the five most conservative justices swept through the just-ended term, leaving their wake a major overhaul of the nation's law.

In nine months of activity rivaling the conservative intensity shown since January by the Republican-led Congress just across the street, the five justices who held voting control at the court chose to exercise it often, freely and boldly.

Dramatic constitutional change came regularly, right up through Thursday, when the court finished in a flourish and left town for the summer. This was the work primarily of Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

Just as conservatives in Congress this year have moved energetically to roll back decades of liberal social legislation, the court's conservatives frequently cast their votes together to roll back and even to cast aside liberal constitutional precedents.

Mark Tushnet, a Georgetown University law professor, said the court's term amounted to "a repudiation of post-New Deal constitutional law: that it is constitutionally permissible for government to act to alter background social conditions. There is a lot to indicate that the majority doesn't agree with that anymore."

The effect of the conservative trends during the term: a major curtailment of civil rights precedents, especially those in favor of "affirmative action" programs and race-based legislative redistricting.

Holding together on the other side of the high court, with equal fervor and commitment, were its more liberal members -- Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.

To some observers, the conservatives' solidarity -- unusual in a court that often scatters in varied ideological positions -- was a reaction to the firmness of the liberal bloc's unity.

Paul Cappuccio, a former law clerk to Justices Kennedy and Scalia and now a Washington lawyer, suggested last week that "it took all five of the conservatives to do anything" because they had to contend with "a solid liberal bloc." When staying together to counter the liberals, the conservatives "tended to be more forceful," he said.

Court's dynamics

The liberal bloc gained a more or less committed member this past term with the arrival of Justice Breyer, President Clinton's second appointee. Justice Ginsburg, another liberal-leaning Clinton choice, showed a year earlier that the bloc had "the intellectual power to mix it up" with the conservatives, as Mr. Cappuccio saw the court's dynamics developing. The conservatives had a stronger sense "of what they were voting against," he said.

Liberal advocacy groups noticed, with some anxiety, the same conservative solidarity. The People for the American Way's legal director, Elliot Mincberg, for example, said the just-completed term "was marked by conservative judicial activism."

For liberal observers, in fact, the term's overall results had a distinctly threatening tone. "All in all," said the American Civil Liberties Union's legal director, Steven R. Shapiro, "it's been a disappointing year that ended on an extremely ominous note."

He was referring to the court's final day, when the justices imposed strict new limits on the creation of black-dominated election districts and eased considerably the long-standing ban on government support of religion.

Conservative organizations, by contrast, appeared to be largely pleased with the results. Mathew D. Staver, president and general counsel of Liberty Counsel, a legal advocacy group based in Orlando, Fla., said: "I think it's a distinctly more conservative court . . . a little bit more traditionally conservative."

He noted with approval the court's growing skepticism about "federal government involvement in state and local issues."

But, he cautioned, conservatives cannot rely heavily upon the trends of last term, "because the decisions are so close: the votes are just one vote apart."

Same lineup likely

As the term ended, there was no sign that any justice, from either the court's left or right, would retire this summer. Another term is likely with the same lineup as the court faces new appeals dealing with gay rights, women's rights and voters' rights.

Should there be a vacancy on the court next year, late in the term or after it concludes next summer, it is doubtful that the Republican-controlled Senate would approve a new Clinton nominee. The Senate could leave the vacancy to be filled after a new presidential election in November 1996.

There is clear precedent for that: Republican senators filibustered into extinction President Lyndon B. Johnson's attempt in 1968 to name a replacement for retiring Chief Justice Earl Warren. They saved the chief justiceship for newly elected President Richard M. Nixon to fill in 1969 with Warren E. Burger.

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