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The Nation : After a Furious Battle for Control, Centrists Win Out on High Court

October 23, 1994|David M. O'Brien | David M. O'Brien is a professor at the University of Virginia and author of "Storm Center: The Supreme Court in American Politics" (Norton) and an annual "Supreme Court Watch" (Norton), among other books

CHARLOTTESVILLE, VA. — The Rehnquist court has been taking fewer and fewer cases each year. Is the U.S. Supreme Court retreating from the political landscape? Not likely. Is this the court's way of halting what it perceives as past "judicial activism"? Probably, not. A far more likely explanation is that the court's centrists are in control and have no truck with the arch-conservatives' agenda of overturning liberal precedents.

At the same time, Chief Justice William H. Rehnquist and his far-right colleagues, Justices Antonin Scalia and Clarence Thomas, appear content to avoid possible future rulings that go against what they stand for. They are engaged in damage control against the growing core of more moderate centrists who oppose overruling liberal precedents and settled law.

Last term, the court handed down written opinions in just 93 cases out of more than 7,700 cases on its docket. That is the lowest number since the 1955 term, when the Warren court decided 94 cases by written opinion out of a far smaller docket of 1,856.

By contrast, in the 1970s and '80s, the Burger court (1969-86) regularly disposed of more than 150 cases by written opinions each year. Most justices complained they were deciding too many cases.

The court has certainly solved its workload problem--if it had one. With Rehnquist at the helm, conferences are more tightly run and the justices have become more selective in granting review. In addition, Congress, in 1988, gave the Supreme Court virtually complete discretion to decide what to decide. The court no longer has to review certain appeals. The court, as Justice Sandra Day O'Connor often stresses, decides only "hard cases"--those raising the most divisive conflicts of the day.

The justices also generally grant review of cases in which a majority wants to reverse a ruling of a lower federal court or state court. Some court watchers speculate that, after 12 years of appointees to the federal judiciary by Republican Presidents Ronald Reagan and George Bush, the Rehnquist court is content to leave many conservative appellate-court decisions alone. But there is more to the court's taking fewer cases than that.

A kind of epic struggle took place within the court and its far-right wing lost out. The most notable battle was over abortion. In Webster vs. Reproductive Health Services (1989), the court split five-to-four. A bare majority refused to overrule the 1973 ruling in Roe vs. Wade on a woman's right to have an abortion.

Three years later, in Planned Parenthood of Southeastern Pennsylvania vs. Casey, the court's centrists, Justices Anthony M. Kennedy, David H. Souter and O'Connor, again prevailed. They, with Justices Harry A. Blackmun and John Paul Stevens, reaffirmed "the essence" of Roe. Rehnquist and Scalia, joined by Thomas and Byron R. White, again bitterly lamented the failure to overturn Roe. The right wing of the Rehnquist court has been fighting a rear-guard action ever since.

In the first years of the Rehnquist court, to be sure, it lunged in more conservative directions. The justices also rushed to overrule liberal precedents. In its first four terms, no fewer than 11 precedents were abandoned. In the 1990 term alone, five more were discarded. Another seven were jettisoned next term, for a total of 23. But that was the high-water mark. None has been reversed in the last two terms.

In other words, the conservative slide and hasty press to overrule liberal precedents has been abated, due to the growing influence of centrists and to changes in the composition of the bench. Reagan's elevation of Rehnquist to chief justice and the appointments of Scalia, in 1986, and Kennedy, in 1987, moved the court right. But Bush's two appointees were a mixed bag for conservatives. Thomas has proved to be a consistent ally of Rehnquist and Scalia. Souter, however, has come into his own since his appointment in 1990. He has demonstrated leadership and taken Rehnquist and Scalia to task for some of their views and insistence on overruling liberal precedents.

Democratic President Bill Clinton's appointment of two more centrists, Justices Ruth Bader Ginsburg last year and Stephen G. Breyer this year, has further solidified the centrists' control.

Rehnquist and his two principal allies have lost the war over more than just abortion. Their defense of states rights and attempts to limit congressional power have also been rejected by the court's majority. Their efforts to allow greater regulation of commercial speech and to permit greater governmental accommodation of religion in public schools have also been rebuffed by the court's centrists.

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