A Conservative Supreme Court

July 10, 1995

The Supreme Court's just-concluded term was the most determinedly conservative in decades. Its core of three very conservative justices -- Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas -- were joined on most of the close, important decisions by Justices Sandra Day O'Connor and Anthony Kennedy. When the term began, those two moderate conservatives appeared ready to form a dominant centrist coalition with the court's liberal wing of Justices John Paul Stevens, David Souter and Clinton nominees Ruth Bader Ginsburg and Stephen Breyer. No more.

The addition of the newcomers seems to have pushed Justices O'Connor and Kennedy back to the right of the philosophical center. It used to be said "the Constitution is what the Supreme Court says it is." Now it can almost be said, "the Constitution is what Justices O'Connor and Kennedy say it is." Of the 16 cases in the term settled by a 5-4 vote, one of those two justices was in the majority every time, and both were in the majority 11 times. A similar but less pronounced phenomenon occurred in the previous term.

If there is a theme it is that these conservatives are ready to overturn a lot of precedents established by liberal or moderate courts of the past 40 years. Twelve of those 16 close decisions were won by the conservatives. For example, on the last day they ruled 5-4 that the wall between church and state is not as high as it has been assumed for a generation. Another example of reversing a trend was a decision overturning a law based on the Constitution's Commerce Clause. That hadn't been done in 60 years. The conservatives also overturned a racial redistricting scheme in one state that is quite similar to those in several states -- a scheme that previous Congresses and the last two Departments of Justice agreed upon. Also in the field of race relations, the court came out with a decision that will hobble if not ultimately halt federal affirmative action in hiring and contracting.

If this sounds familiar, it is because the same sort of more or less anti-federal government approach to many problems dominated the 1992 and 1994 election campaigns, and apparently is going to go be center stage in 1996. The only big decision the court handed down that went against this tide was its 5-4 ruling forbidding states to set term limits for members of Congress. (Justice Kennedy switched to give the liberals one of their few victories in close cases.)

There has been some talk about either or both Justices Rehnquist and Stevens retiring soon. One from column A and one from column B. Given the close divisions and the stakes, judicial selection philosophy is likely to be a major issue in the 1996 presidential campaign.

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