Rehnquist's Imprint Set On Court
As tribunal begins new term, chief justice's conservative views now dominate.
BOSTON — On the eve of a new term, the US Supreme Court is moving deeper into what might be called the "Rehnquist era." After 15 years as chief justice, Arizona-bred William Rehnquist has shaped a court as legally and stylistically conservative in the 1990s as the Warren court was liberal in the 1960s.
During his overall 25-year tenure on the high bench, much of it as a lone dissenter, Justice Rehnquist has tried to reverse what he felt were the judicial excesses of the Warren court. Now Rehnquist, who was elevated to chief justice by President Reagan, can regularly muster a five-vote majority for many of the conservative approaches he has long espoused.
Fifteen years ago, Rehnquist was alone in trying to speed up the death-penalty process and to roll back affirmative action. Now these are the laws of the land. Ten years ago, "states' rights" seemed an antiquated idea. Today, lawyers arguing before the court go to great lengths to find a states'-rights angle to their case.
"In a sense, the mountain has come to Muhammad," Yale University scholar Akhil Amar says of Rehnquist's influence. "For years his dissents seemed like fringe efforts. Now they are respectable. The court has moved toward him. Rehnquist can't lead from the wing; that wouldn't be judicially proper. So the role of crusader or zealous reformer falls to [Antonin] Scalia and to a lesser extent to [Clarence] Thomas."
The nine justices, who start a fresh term Monday, seem remarkably amicable and efficient, though cautious, legal group. The top US court went on vacation in July after a term described as the most dramatic of the decade - with justices telling Congress and the president in a nearly unanimous voice that, when it comes to the Constitution, "Thou shalt have no other interpretations before us."
Yet for all of last term's Sturm und Drang - the court forbade a "right to die," allowed states to ignore a congressional hand-gun bill and a religious freedom act, and informed President Clinton he must stand trial on civil charges - the dynamic among the justices is not likely to change much this year. Barring any new appointments, scholars say, there is no sign of major new legal directions or theoretical struggles. The justices are settling into a comfortable familiarity.
In part, the quiescence may be due to the sheer size and challenge of last year's docket. Some observers feel the justices may want to lie low for a term.
Others, however, point to a court that is divided 5 to 4 on major social and legal issues. There is not a lot of "play" in terms of shifting votes, and the change in jurisprudence brought, for example, by Justice Scalia has been in place for some time.
"Justices like Scalia, who have really pushed a methodological shift, have already had their effect," says David Gelfand, constitutional scholar at Tulane University in New Orleans. "There are five solid conservative votes. In most areas of doctrine on the court today, no one is changing anyone else's mind."
Ideologically, the only member of the court today who truly writes in the liberal Warren court tradition is Justice John Paul Stevens. Of course, in day-to-day voting power and on the most sensitive cases, Justices Sandra Day O'Connor and Anthony Kennedy will likely set the pace, as before. They are the "swing votes" - moving between the conservative and moderate blocs on the court. Justice O'Connor, for example, is likely to play a crucial role in what seems the premier case of this term, an affirmative-action question dealing with the layoff of a white teacher in New Jersey in 1989.
Even though more-activist justices such as Scalia and Thomas are often credited with the court's conservative tone, it is Rehnquist who has defined its direction. Rulings are moving away from an emphasis on individual rights and interpretations of the Constitution that incorporate those rights, and toward a new engagement with the "plain meaning" of words in the original text.
NOT that the more extreme views of the conservative wing are about to win the day - Justice Thomas's suggestion last term that members of society have an unimpeded right to bear arms, for example. Yet the moderate wing has no equivalent pull to the agenda of Rehnquist, Scalia, and Thomas.
"Even the so-called liberals on the court like [Stephen] Breyer and [Ruth Bader] Ginsburg, the Clinton appointees, are stylistically conservative," says Michael Dorf of Columbia University Law School in New York. "We do not have a replacement for liberals like [Justices William] Brennan and [Thurgood] Marshall. Breyer and Ginsburg do not like broad rulings. They are not bold; they are cautious in their approach. They aren't people who, like Stevens on the left or Scalia on the right, want to make law."
Court watchers say the relationship between Rehnquist and Scalia in influencing the court is much like that between Hugo Black and William Brennan in the 1960s. Justice Black began to quietly lay a foundation for a doctrine of individual rights in the early 1950s. Yet it took 15 years for Justice Brennan to pick up the work done by Black and turn it into the majority approach.
SUPREME COURT SNAPSHOT
* Here's a look at the justices, the law school they graduated from, which president appointed them, and the year they took their seat.
The chief justice earns $171,500 a year; associate justices make $164,100.
appointed associate justice
by President Nixon, 1972;
made chief justice
by President Reagan, 1986.
John Paul Stevens Northwestern;
President Carter; 1975.
Sandra Day O'Connor
Stanford; Reagan; 1981.
Harvard; Reagan; 1986.
Harvard; Reagan; 1986.
Harvard; President Bush; 1990.
Yale; Bush; 1991.
Ruth Bader Ginsburg Columbia;
President Clinton; 1993.
Harvard; Clinton; 1994.