Experts expect Rehnquist to set new course for Supreme Court. New chief, Scalia both persuasive advocates
Will the Supreme Court under William H. Rehnquist immediately take a sharp turn to the political right -- reversing several decades of liberal decisions in the areas of abortion, school prayer, and the rights of the criminally accused? There will be a ``difference'' in the high court's direction, some constitutional scholars agree. But these analysts tend to disagree on just how much judicial change will take place, and how fast, with the elevation of Mr. Rehnquist to chief justice of the United States and the appointment of Antonin Scalia to associate justice of the Supreme Court.
Jesse Choper, the dean of the University of California at Berkeley Law School, predicts that, in the near future, the direction of the court on major civil rights and social issues will remain essentially the same as it was under retiring Chief Justice Warren E. Burger.
Dean Choper bases his evaluation on the theory that Justice Scalia's votes will basically parallel those of Mr. Burger. ``I've examined every 5-to-4 vote of any significance over an eight-year period,'' says the Berkeley scholar, ``[and I don't see] where a vote [to the] right of Burger's would make a difference.''
But Harvard constitutional-law Prof. Laurence H. Tribe stresses that in the process of Supreme Court decisionmaking, ``the whole is much more than the sum of its parts.'' He says that in the course of debating 150 cases a year in judicial conference, an individual justice's ``power of persuasion'' is an essential factor. Justices in the center on an issue can be won over by compelling arguments from a colleague, Professor Tribe says.
``The chemistry of the court makes much more difference than a nose count,'' Tribe says. ``Scalia has a novel, powerful mind. He'll be a skillful advocate in conference. The intellectually skilled Rehnquist-Scalia axis can make a big difference,'' he adds.
Stanley I. Cutler, a University of Wisconsin professor of American institutions, also emphasizes the importance of the ``power to persuade in the judicial chamber.'' He says Mr. Burger was not particularly strong in this area. ``The history of the court is replete with active lobbying by justices,'' Professor Cutler says. But he adds that ``sometimes lobbying backfires.''
``It did with Felix Frankfurter [an appointee of Franklin D. Roosevelt who served on the court from 1939 to 1962]. Sometimes they [Justice Frankfurter's fellow justices] were not very receptive to his charms,'' Cutler says.
Both Rehnquist and Scalia have strong conservative credentials. Justice Rehnquist has voiced conservative views in high-court opinions for almost 15 years, particularly picking away at the court's sweeping individual-rights rulings during the 1950s and '60s under the leadership of Chief Justice Earl Warren.
Scalia has given strong hints of his judicial philosophy during the last four years as a member of the US Court of Appeals for the District of Columbia Circuit. Like Rehnquist, Scalia has generally been opposed to abortion and busing to achieve school desegregation and has often espoused narrow interpretations of the constitutional rights of those accused of crimes.
Rehnquist and Scalia have been called ``conservative activists.'' Both are prone toward Reagan administration philosophy, which, among other things, encourages the promotion of business over environmental concerns and defers federal authority to the states.
Neither appointee has openly subscribed to US Attorney General Edwin Meese's call for a return to the framers' ``original intent'' in interpreting the Constitution or to Mr. Meese's questioning of the ``doctrine of incorporation,'' through which the 14th Amendment extends the Bill of Rights to the states.
Both men, however, favor curbing the powers of the federal government and giving more authority to the states.
Analysts say that Rehnquist opinions are predictably to the right of center. They are more cautious in projecting how Scalia will vote on certain issues, pointing out that he has at times demonstrated strong judicial independence.
Yale Kamisar, a professor at the University of Michigan Law School, says the Supreme Court's new composition probably bodes ill for many landmark criminal-justice rulings of recent years. He notes that Rehnquist has led the way in recent years toward weakening of the ``exclusionary rule'' (which mandates that evidence improperly gathered by police be barred from the courtroom) and toward modifying the Miranda warnings required to be read at the time of arrest to those accused of crime.
``New and as yet unknown justices will find it easier to abolish Miranda and the exclusionary rule because of [the doctrines' having been] stripped down by their predecessors,'' Professor Kamisar says.
Analysts place Rehnquist and Scalia on the court's extreme right in the judicial spectrum. Justices Sandra Day O'Connor and Byron R. White also have strong conservative leanings. On the far left are William J. Brennan Jr. and Thurgood Marhsall. Harry A. Blackmun and John Paul Stevens often vote with this liberal duo.
The ``swing vote'' of Justice Lewis Powell Jr., which has turned the outcome of many 5-to-4 decisions in recent years, will continue to be important on the Rehnquist court.
Professor Tribe says that if President Reagan gets at least one more opportunity to appoint a Supreme Court justice, the result could be a decisive move to the political right.
``The Warren court launched a major revolution [in the area of civil rights],'' Tribe says. ``Under Burger there was no counterrevolution as expected. Under Rehnquist there could be a brief pause,'' he adds.