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Liberals and Conservatives Uneasy as Rehnquist Veers Court to Center

July 05, 1988|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — In his second year as chief justice, William H. Rehnquist firmly put his stamp on the Supreme Court. But it was not always the stamp that his conservative admirers wanted.

As a junior member of the court since 1972, Rehnquist was its most strident conservative: strongly in favor of presidential power, tough on crime, skeptical on civil rights and civil liberties.

And, in his first year as chief justice, Rehnquist frequently found himself isolated by his ideological rigidity. Justice William J. Brennan Jr., the leader of the court's liberal wing, wrote many of the court's key decisions.

Downright Liberal

In the term that ended last week, by contrast, the chief justice clearly established this as the Rehnquist court. In the process, he frequently sounded downright liberal.

He came down in favor of the First Amendment, against property owners and against the CIA. And, last week, in rebuking President Reagan and Justice Department conservatives, he wrote the court opinion upholding Congress' power to create independent prosecutors to pursue corruption in the executive branch.

Reagan's three appointees to the court also clarified the roles they are likely to play in the future. Antonin Scalia became the court's dogmatic conservative; Anthony M. Kennedy, who joined the court only in February, appeared to be a more cautious variety of conservative, and Sandra Day O'Connor showed signs of becoming the court's swing vote.

A Changed Chief Justice

However the rest of the court lines up, the chief justice was not the Rehnquist of old, whom conservatives loved and liberals loved to hate. But the two sides see quite different forces at work.

To some conservatives, Rehnquist has decided that, if you can't lick 'em, join 'em. They fear the chief justice may be emerging as a genuine moderate who is more interested in building a consensus on the court than in maintaining his ideological purity.

Not a Crucial Vote

However, liberal lawyers still regard Rehnquist as a true-blue conservative who is merely biding his time. When Rehnquist can muster a five-member conservative majority, they say, the high court rules that way. Otherwise, Rehnquist is willing to join the majority and write an opinion that gives the liberals no more than necessary. In no major case, they note, did Rehnquist provide the liberals with their crucial fifth vote.

The term that ended Wednesday provided ample evidence for both views.

Conservative lawyers are disheartened by both the style and the substance of Rehnquist's recent opinions. As an associate justice, Rehnquist's opinions and dissents were often biting and sarcastic, sometimes sweepingly philosophical, rarely dull. He took on the liberal opposition directly and blazed away.

Now a new, bland version of Rehnquist appears in print.

Recent Opinions 'Dull'

"It certainly does not read like the Rehnquist of old," said University of Chicago Prof. Michael McConnell, a former Justice Department lawyer. "Whatever you could say about him, he was one of the court's best writers. His recent opinions are dull and not very persuasive."

In last week's opinion in the independent counsel case, Rehnquist offered a careful point-by-point rejection of the conservative contention that the appointment of prosecutors to investigate executive branch corruption impinges on presidential powers. The legal views expressed by Rehnquist, McConnell said, are "utterly irreconcilable" with his work in the 1970s.

Other conservatives say that Rehnquist's position is frequently dictated by tactics. "I think he threw his vote to keep control of the opinion," said former Justice Department lawyer Bruce Fein, another conservative who closely tracks the court's work.

Under procedures of the court, if the chief justice votes in the majority, he decides who writes the opinion. If not, that power falls to the senior member in the majority, which is usually the liberal Brennan.

Series of Liberal Victories

Last year, in Rehnquist's first term, Brennan eked out a series of 5-4 victories in the most crucial cases involving civil rights and civil liberties. Moderate Justice Lewis F. Powell repeatedly supplied Brennan with a decisive fifth vote.

But this year, with Powell replaced by Kennedy, Rehnquist held sway in nearly all the key cases, and Brennan was unusually silent.

The term's most important ruling written by Brennan was also notably ironic. Last week, he took the side of the conservative National Right to Work Committee and concluded that unions may not force dissident members to pay full union dues if some of the money supports political causes. To do so, Brennan said, violates the free speech rights of the dissidents.

None of the moderate-to-liberal opinions written by Rehnquist were in cases in which the court was evenly divided. The court was unanimous when Rehnquist wrote an opinion strongly defending the freedom of the press in a suit brought by the Rev. Jerry Falwell against Hustler magazine Publisher Larry Flynt.

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