Forecast for a Rehnquist Court : The Focus Will Shift Through Its Choice of Cases to Review

The nominations of William H. Rehnquist as the chief justice of the United States and Antonin Scalia as an associate justice of the U.S. Supreme Court have given politicians and legal scholars an opportunity to speculate on what impending disasters or good fortunes will befall the nation in coming years. But, in trying to assess what effect a Rehnquist court will have, one should do more than just count judicial noses.

Judicial policy-making is a complex process presenting many barriers to those wishing to make constitutional and statutory interpretations. An analysis of those barriers suggests that, as chief justice, Rehnquist may have difficulty in achieving the goals that many conservatives have set for the Supreme Court.

Decision-making on the Supreme Court is a collective enterprise, and all justices’ votes are equally weighted. Yet the chief justice is clearly the first among equals, in a position to exercise extraordinary power over virtually all phases of this decision-making. Substantial influence over the court’s agenda is assured, because applications for review are first examined by the chief justice (or, more correctly, his law clerks). Those that he chooses as worthy of review are discussed by all the justices in conference, and all participate in deciding which cases to accept. The other justices review all applications, and may add cases to the “discuss list,” but such additions are unusual.

Rehnquist’s views on the court’s limited role in resolving political issues suggest that his influence may be much more substantial when it comes to denying cases for review rather than in deciding which 200 or so cases the court will take each year.

After a case is accepted and oral arguments are presented, it is discussed in conference. The chief justice sets the agenda, speaking first to summarize and outline issues in the case, and voting last. If in the majority, he then assigns one justice to write the court’s opinion. These assignments are especially critical in close cases, since the author must prepare an opinion that speaks for the majority of the court. In the effort to reach consensus, this often becomes a disadvantage for an ideologically extreme justice.

As an associate justice, Rehnquist has been the most frequent dissenter among the court’s conservative bloc. This rate of dissent, if it were to continue after he has been confirmed as chief justice, means that in many cases Rehnquist would lose control of the opinion assignment to the most-senior justice in the majority. Moreover, the need to call on moderate justices to retain a majority and to equally distribute the court’s opinion-writing workload means that Rehnquist could not write all of the opinions himself or assign them only to his conservative brethren.

To be considered authoritative, a Supreme Court policy must have the support of five or more justices. The chief justice cannot command that associate justices support or join an opinion, even if they voted in the majority. Concurring opinions may be written explaining votes, or justices may even change their minds and votes after seeing a draft of a majority opinion. On some occasions refusals to join a majority opinion result in opinions with less-than-majority support--these are called plurality opinions. In such cases no authoritative law has been set. Similarly, cases with majority and concurring opinions may introduce confusion in lower courts about the underlying rationale of a decision, and at a minimum show a lack of consensus on the court regarding an issue.

Recent Supreme Court terms show considerable lack of consensus. The Harvard Law Review reports that in the 1984-85 term the court had 151 majority or plurality opinions plus 62 concurring and 117 dissenting opinions. These figures are indicative of almost a decade of highly individualistic behavior on the court--a behavior that some have attributed to a lack of leadership by Chief Justice Warren E. Burger, to the heavy caseload that precludes time for compromise, or to the greater numbers of law clerks capable of drafting separate opinions for the justices.

Whether Rehnquist will exercise the powers of chief justice to forge a consistent, conservative consensus is unknown. Past behavior on the court indicates that Rehnquist is quite willing to write concurring and dissenting opinions. That behavior will have to change to achieve further moves to the right. By reputation, Rehnquist has the intellect and social skills to achieve the conservative consensus that has eluded Burger. But the task will not be an easy one, since Rehnquist has contributed to the recent spate of separate opinion-writing and because he is an ideological outlier, even among conservatives on the court.

The Supreme Court will likely remain in the eye of many storms brewing in the American political system--school desegregation, abortion, affirmative action and First Amendment freedoms, to mention only a few. Whether a Rehnquist court will become more conservative on these issues will depend not only on the number of votes but also on the degree to which the new chief justice can marshal his forces.