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Rehnquist Plus Scalia Equals a Radically New Court

August 17, 1986|David M. O'Brien | David M. O'Brien, professor at the University of Virginia, is the author of "Storm Center: The Supreme Court in American Politics" (Norton, 1986).

CHARLOTTESVILLE, VA. — The actions of the Senate Judiciary Committee on Thursday, recommending confirmation of William H. Rehnquist as the 16th chief justice of the United States, and the addition of Antonin Scalia, are both critical to the future role of the U.S. Supreme Court.

Under Warren E. Burger, the court lacked direction and largely confined itself to remodeling in the house the Warren court built. It was dominated by centrists, pulled in different directions by either the liberal or the increasingly conservative wing. The record of moderation will make the Burger era that of a "transitional court"--divided between what the Warren court did and what the Rehnquist court achieves.

Where the Rehnquist court ultimately goes is, of course, a matter of speculation. But that is no reason, however tempting, to conclude that the changes won't matter. The court will be different. Rehnquist and Scalia are more conservative and ideologically committed than Burger.

Rehnquist has the intellectual and temperamental wherewithal to be a leader. He is a shrewdly articulate advocate of his views, who also has a practical joker's sense of humor--though he gave a far different impression by restraining himself during his confirmation hearings.

Even court liberals think he will make a "splendid" chief justice. This is largely because Burger was not equipped to lead. His presentation of cases at conference was poor, votes tentative and everything turned on how opinions were written. As chief justice, he had the power--when in the majority--to assign opinions. This allowed Burger to control more than 90% of all assigned opinions, even though he would subsequently change his views and even votes. Other justices were understandably angered.

But Rehnquist must still build a majority. In a number of areas he can count on Byron R. White, Sandra Day O'Connor and Scalia. To pick up one more, he may moderate some views and exercise the power of assigning opinions in strategic ways. This will test Rehnquist's ability to compromise--rarely shown in the past. When staking out his often extreme positions, he has written more solo dissents (54) than any of his colleagues.

On certain issues, Justices John Paul Stevens or Harry A. Blackmun might swing over, but they often align with the liberals--Justices William J. Brennan and Thurgood Marshall. That leaves Lewis F. Powell Jr. at the fulcrum of power in the near term. As a centrist, his vote will prove more crucial than before. Last term, for example, the justices split 5-4 in 46 cases. Powell was most often in the majority (35 times)--the conservatives winning about three times as often as the liberals. But Powell is an independent, pragmatic jurist who believes in precedent. He remains pivotal in upholding the abortion decision, among others.

The most important immediate change will be what cases are granted review. The cornerstone of the court's operation is the power to decide what to decide. More than 5,000 cases arrive annually, yet only about 170 receive full consideration--oral argument and decision by written opinion.

The power to deny cases is the power to set the court's substantive agenda--first battleground in the war over the direction of the court.

The importance of ideological changes in the court's composition are clear. The Warren court took many cases involving the rights of the accused in order to extend the guarantees of the Bill of Rights to individuals in state as well as federal courts. By contrast, the Burger court increasingly selected cases to cut back, if not reverse, that extension.

Such trends are certain to continue. In recent years the court took cases involving rights of the accused at the behest of the government, rather than at the request of individuals challenging governmental action. While the Warren court was sympathetic to cases brought by indigents, the Burger court became hostile. In 1969-72, an average of 30 such cases were granted each term. After Richard M. Nixon's last two appointments, the average dropped to 16 during 1972-80. Since Ronald Reagan named O'Connor in 1981, only eight per term have been granted. On individual rights, the Warren court decided against the government 66% of the time, the Burger court only 44%. The percentage could drop under Rehnquist, whose record of voting for the government is unsurpassed.

As chief justice, Rehnquist has a greater role in structuring the court's agenda. And he will have more interest and success in doing so than Burger, who devoted more effort to administrative duties. In addition, the way cases are granted will work to his advantage.

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