Move to Provide New Conservative Strength : Rehnquist Expected to Lend More Philosophical Leadership; Scalia Noted for Energy and Youth
The elevation of Justice William H. Rehnquist and the addition of Judge Antonin Scalia will provide new voting strength and intellectual firepower to the conservative bloc of a Supreme Court known for its generally moderate but sometimes zig-zag judicial course, legal authorities said Tuesday.
Rehnquist, an articulate exponent of legal conservatism throughout his 14 years on the court, is widely seen as able to lend more philosophical leadership than Chief Justice Warren E. Burger and to exert more power of persuasion.
Scalia, a one-time law professor and Reagan appointee to the U.S. Court of Appeals for the District of Columbia, is viewed as providing new intellect, energy and youth--and a philosophy that over the long run may produce a voting record more conservative than that of Burger.
The 50-year-old Scalia nearly personifies the type of committed, credentialed conservative that the Reagan Administration has sought for appointments throughout the federal bench. If confirmed, he will join a court that next fall would have become the oldest in history.
Legal observers generally agree that there is little prospect of sharp changes at the court in the immediate future. The Burger court was regarded as turning in a more conservative direction than the court under Chief Justice Earl Warren. But it supported many of the Warren court’s most significant rulings--including controversial decisions on school prayer, desegregation, reapportionment and the rights of criminal defendants.
Rehnquist and Burger--and now perhaps Scalia--have been conservative mainstays. Justices William J. Brennan Jr. and Thurgood Marshall have been consistently liberal. But an often-shifting philosophical center has effectively controlled the court--and seems destined to do so until there is further change.
“There’ll be no significant, meaningful difference in the Supreme Court’s product,” said Jesse H. Choper, dean of the UC Berkeley Law School. “I’d be very surprised if there were any basic changes.”
Prof. Yale Kamisar of the University of Michigan Law School agreed. “It seems to be essentially one conservative vote--Scalia--for another--Burger,” he said. Not surprisingly, President Reagan’s choices drew praise from conservative legal observers.
“Scalia is an outstanding judge, a great scholar and a strict constructionist--a ‘soul mate’ of Rehnquist,” said Patrick B. McGuigan of the Judicial Reform Project, a division of the Free Congress Research and Education Foundation. “This is putting the Reagan imprint on the Supreme Court.”
Liberals foresaw little change, noting that the naming of Scalia would have taken on far more significance had he been replacing Brennan, Marshall or a court moderate such as Justice Lewis F. Powell Jr.
“The difference, really, is in longevity: replacing a 78-year-old man with a 50-year-old man,” said Burt Neubourne of the American Civil Liberties Union. “Burger tended to vote for the government and against the individual. I assume Scalia will continue that pattern.”
Scalia has been a judge only since 1982 and thus has not had the opportunity to establish a record from which to make sound predictions on how he will vote on the Supreme Court.
Among other things, he has voted against challenges to governmental authority and has ruled against First Amendment claims made by journalists and protesters. Along with Judge Robert H. Bork--himself another potential Reagan nominee to the high court--he is regarded as the most conservative member of the D.C. appellate court.
Scalia dissented when the appeals court said that the right to “symbolic speech” prohibited the government from barring demonstrators from sleeping overnight in federal parks in Washington. Scalia wrote that sleeping is not a form of speech protected by the First Amendment--and the Supreme Court later reversed the appellate ruling, allowing the government to bar the protesters.
Authorities who have studied his opinions as an appellate judge believe Scalia will take distinctly conservative positions on such big issues as abortion, affirmative action and separation of church and state. Still, on some key issues, it may be some years before his impact will be felt.
In their recent decision on abortion, for example, five justices strongly reaffirmed the court’s 1973 ruling giving women a constitutional right to end their pregnancies. Burger, who is leaving the court, issued a dissent, saying that the 1973 ruling should be reconsidered.
In another recent case, Burger voted with the majority when the court struck down a Michigan school district plan providing special job protections for blacks at the expense of whites with more seniority--but joined in an opinion suggesting that some carefully tailored affirmative action plans can meet constitutional standards.
Last year, in another celebrated case, Burger dissented when the court invalidated an Alabama law that provided for a “moment of silence” in school classrooms--a law the majority said was enacted improperly for the purpose of encouraging prayer.
Rehnquist, of course, will continue to cast only one vote on the nine-member court--but in his capacity as chief justice, he will be in a better position to assert intellectual leadership.
“Rehnquist has been a much more consistent, systematic and effective spokesman for extreme judicial conservatism than Burger,” said Benno Schmidt, former dean of Columbia University Law School.
“In the long run, the appointments of Rehnquist and Scalia, even without further changes on the court, are going to mean an important reshaping of the court for the future.”
Both supporters and critics agreed that Rehnquist’s personal warmth, friendliness and legal intellect may enable him to exert more influence on the other justices than did Burger--a man widely respected for his devotion to court administration but not regarded as particularly persuasive in fashioning court majorities in important cases.
“There are rare moments in history when a chief justice, just by the force of personality, can have an impact on the way a decision is reached,” said Choper, citing as an example the assertive role of Warren in the court’s landmark 1954 ruling mandating school desegregation.
Gerald Gunther, professor of constitutional law at Stanford University, observed: “Rehnquist is hard working, very bright . . . and elicits far more respect from his colleagues. That helps internal harmony.”