Clinton's Justices Pave Supreme Court's Middle Road

With another term under their belts, two newest jurists brake court's rightward momentum.

Of the nine justices on the United States Supreme Court, Republican presidents named seven and President Clinton - the first Democrat in the Oval Office since 1980 - named two.

Now, as history begins to define Mr. Clinton's legacy, his appointments of Justices Ruth Bader Ginsburg and Stephen Breyer may win a spot near the top of his achievement list.

Without doubt, the Clinton appointees are acting as the brake on a court that was moving rapidly toward cultural conservatism and limits on individual rights, say many court observers. Especially when the justices cannot reach consensus, as is often the case, the two newest members are steering the court in a more mainstream direction.

"Without [Justices] Ginsburg and Breyer, you have a radically different jurisprudence on the court," says David O'Brien, who publishes an annual Supreme Court review. "Voting rights and affirmative action are overturned completely. More acts of Congress are overturned. You would see a reversal of Roe v. Wade [affirming a woman's right to abortion]."

Other cases that might have turned out differently include one from the Virginia Military Institute (VMI), in which the court struck down all-male public colleges. The two newcomers frown on the death penalty, but have not tried to abolish it. They favor drawing voter districts in a way that considers race, but not ardently.

As Ginsburg begins her sixth year and Breyer his fifth on the Supreme Court, the pair is helping to shape a strong moderate wing. Moreover, with an impeccable civility and quiet demeanor, they are tempering a body that had been riven with ideological fissures and personal antipathy, sources close to the court say.

Of the two, the biggest surprise may be Breyer, a federal judge and Harvard professor who joined the court in 1994. Breyer was early labeled a gray legal technocrat. Yet his ringing dissent in the recent line-item-veto case and his role as lead dissenter in last year's epic term show him emerging as a questioner of states' rights and "original intent" - the leading vision of jurisprudence coming from the conservative wing.

In dissenting with the majority decision to strike down the presidential line-item veto, Breyer contrasts the size of the US population, budget, and government in 1789 with the vastly larger conditions today. Whereas the majority held that the new presidential power violated the Constitution's "separation of powers," Breyer argues that the literal reading should not prevail and that the court should remember the "genius of the Framers' pragmatic vision ... in cases that find constitutional room for necessary ... innovation." The Constitution, he says, was framed to be an evolving document.

Ginsburg, confirmed in 1993, is a steady moderate whose main impact is in gender issues. Her majority opinion in the VMI case broke new ground in equal protection for women, but overall she has taken on fewer fights than Breyer has. Of the four core justices of the moderate wing, which includes Bush appointee David Souter and Ford appointee John Paul Stevens, Ginsburg is probably the most conservative, particularly in criminal law. She epitomizes a new "judicial restraint" on the left, argues Jeffrey Rosen of the The New Republic. In one sense, this tempered position may make Ginsburg an ideal candidate for chief justice if William Rehnquist should resign and if a Democrat appoints his successor.

"Breyer is hitting his stride. He's found his voice as the pragmatic modern critic of the Rehnquist court," says Tom Baker at Drake University in Des Moines, Iowa. "Ginsburg seems to be a kind of left analog of [Justice Sandra Day] O'Connor, the swing vote, which is a strong position to be in."

Breyer, who spent most of his life in Cambridge, Mass., is married to a member of the British aristocracy. He has a reported fondness for Humphrey Bogart films. Friends say he's a brilliant thinker who at Harvard had a red Chevrolet he was generous about lending. He was counsel to the Senate Judiciary Committee in the late '70s, where he wrote the airline-deregulation law - and where he developed an expertise on Congress that regularly appears in his opinions.

Ginsburg, known as the Thurgood Marshall of women's legal rights, is from Brooklyn, New York. She spent 10 years as a professor at Columbia University and slightly more on the US Court of Appeals in Washington. Her husband is a Washington lawyer, and the two are avid opera fans who often travel to music festivals during the summer. She is controversial in some liberal circles for criticizing the grounds on which Roe v. Wade was decided.

BOTH appointees are lively on the bench. During argument in one case this term, which asked whether an American father of a foreign-born, out-of-wedlock child could later claim US citizenship for the child (a right mothers already have), Ginsburg delivered a set of legal body blows to Justices Rehnquist and Antonin Scalia. When the lawyer for the father faltered under fire from the two jurists, Ginsburg took over the entire position of advocacy for the lawyer.

This give and take on the bench represents a new esprit de corps on the Rehnquist court, one the two newcomers have cultivated. Some observers say they bring a more open discourse to the oral arguments, which had tapered off during the 1980s, reflecting a sullenness that matched the ideological strife in chambers. Indeed, they say, Ginsburg's and Breyer's willingness to "mix it up" with other members during arguments may be playing a bigger role in affecting how the justices ultimately cast their votes.

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