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BOOK REVIEW / NONFICTION : Deeply Divided Supreme Court in Search of Leadership? : THE CENTER HOLDS: The Power Struggle Inside the Rehnquist Court, by James F. Simon ; Simon & Schuster; $25, 321 pages

August 28, 1995|CHRIS GOODRICH | SPECIAL TO THE TIMES

Warren Burger, the late former chief justice of the U.S. Supreme Court, proved a major disappointment to political conservatives because he failed to roll back the progressive rulings of the Warren Court.

William Rehnquist, by contrast, remains a hero to the right, for he hasn't moderated his views since ascending, on Burger's retirement in 1986, to the chief's chair.

There's only one fly in the ointment, from the conservative point of view: Even with seven of the court's nine justices being Republican-President appointees, Rehnquist still hasn't been able to muster majorities willing to reject Warren-era decisions on a wholesale basis.

That's the basic argument put forward by legal journalist and former law school dean James F. Simon in "The Center Holds," and it's an accurate one--at least for the moment. Simon doesn't stress the potentially ephemeral nature of Rehnquist's ideological failure, but it's implicit in the fact that the U.S. Supreme Court is now an extremely divided court seemingly in search of leadership, in which a new Republican appointment could alter it for decades to come.

Although the court's two most predictable votes currently come from the right--from Rehnquist and Clarence Thomas--the remaining votes are idiosyncratic, more interesting than influential, and generally unpersuaded by the hard line put forward by the court's most conservative justices.

Simon highlights four areas in which the Rehnquist Court has ruled over the last nine years: racial discrimination, abortion, criminal law and the First Amendment. In each area the conservative wing has made some progress--regress, to many--but the movement has been incremental . . . often, it seems, because many opinions from the court's right have been ideologically freighted to the point that they alienated other, potentially sympathetic justices.

Some conservatives hoped that David Souter, and possibly Anthony Kennedy, would show themselves to be masters of idea negotiation, intellectual fine-tuning and horse-trading, but the Rehnquist Court has yet to produce a conservative version of William Brennan, famous for building majority opinions out of divergent views--or as Simon puts it, for "preferring victory to some abstract declaration of principle."

*

Simon discusses many of the most notorious cases of the past decade--Patterson, which seemed to presage a major retrenchment in civil rights law, the abortion cases that threatened Roe vs. Wade, the flag-burning case, and the racially discriminatory death-penalty case McCleskey.

He often provides new insights: Citing internal court memoranda and unpublished draft opinions, Simon shows a court very much at odds with itself, the justices frequently willing to insult one another's intelligence and even integrity. Such disagreements are hardly unprecedented--one of the most interesting sections of the book concerns the successful attempt by Brennan to moderate William O. Douglas' stinging, inflammatory dissent to Burger's 1972 decision to rehear Roe vs. Wade--but one suspects they occur today largely because of the dogmatism displayed by many sitting justices.

Antonin Scalia, for example, is exceptionally articulate, but his intellectual certainty (read: arrogance) may well lose him as many votes as it achieves. Kennedy is his natural ally, but on more than one occasion Kennedy has been won over to the traditionally liberal side because of the intransigence of the conservative position. (It should be noted, though, that such intransigence isn't predictable: Scalia seems willing to strike down almost any law prohibiting flag-burning, while John Paul Stevens, considered by his Republican sponsors to be something of a turncoat, favors some flag-protection laws.)

And Rehnquist is no Brennan; in many areas he would rather wax eloquent in dissent, it appears, than take the time and trouble to persuade fence-sitters to his point of view.

Thomas, for his part, remains a judicial cipher, apparently so scarred by his confirmation hearings that he feels little need to justify conservative opinions.

At one point Simon refers to Rehnquist as a "conservative-activist," a description emerging from a case in which the chief justice maintained that legal precedent is (in Simon's words) "more important in property and contract right cases than in those involving individual rights." It's too soon to say whether Simon's characterization will stick--Rehnquist can easily counter it by saying that wrongly decided precedents require rejection--but for the moment his activism has not been notably effective.

If a Republican should win the presidency next year, however, and have the opportunity to fill a court vacancy with a judge possessing the intelligence of Scalia and the back-room persuasiveness of Brennan, the Rehnquist Court may yet take its place in history as the conservative judicial Dream Team.

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