Rehnquist Plus Scalia Equals a Radically New Court

The actions of the Senate Judiciary Committee on Thursday, recommending confirmation of William H. Rehnquist as the 16th chief justice of the United States, and the addition of Antonin Scalia, are both critical to the future role of the U.S. Supreme Court.

Under Warren E. Burger, the court lacked direction and largely confined itself to remodeling in the house the Warren court built. It was dominated by centrists, pulled in different directions by either the liberal or the increasingly conservative wing. The record of moderation will make the Burger era that of a “transitional court”--divided between what the Warren court did and what the Rehnquist court achieves.

Where the Rehnquist court ultimately goes is, of course, a matter of speculation. But that is no reason, however tempting, to conclude that the changes won’t matter. The court will be different. Rehnquist and Scalia are more conservative and ideologically committed than Burger.

Rehnquist has the intellectual and temperamental wherewithal to be a leader. He is a shrewdly articulate advocate of his views, who also has a practical joker’s sense of humor--though he gave a far different impression by restraining himself during his confirmation hearings.

Even court liberals think he will make a “splendid” chief justice. This is largely because Burger was not equipped to lead. His presentation of cases at conference was poor, votes tentative and everything turned on how opinions were written. As chief justice, he had the power--when in the majority--to assign opinions. This allowed Burger to control more than 90% of all assigned opinions, even though he would subsequently change his views and even votes. Other justices were understandably angered.

But Rehnquist must still build a majority. In a number of areas he can count on Byron R. White, Sandra Day O’Connor and Scalia. To pick up one more, he may moderate some views and exercise the power of assigning opinions in strategic ways. This will test Rehnquist’s ability to compromise--rarely shown in the past. When staking out his often extreme positions, he has written more solo dissents (54) than any of his colleagues.

On certain issues, Justices John Paul Stevens or Harry A. Blackmun might swing over, but they often align with the liberals--Justices William J. Brennan and Thurgood Marshall. That leaves Lewis F. Powell Jr. at the fulcrum of power in the near term. As a centrist, his vote will prove more crucial than before. Last term, for example, the justices split 5-4 in 46 cases. Powell was most often in the majority (35 times)--the conservatives winning about three times as often as the liberals. But Powell is an independent, pragmatic jurist who believes in precedent. He remains pivotal in upholding the abortion decision, among others.

The most important immediate change will be what cases are granted review. The cornerstone of the court’s operation is the power to decide what to decide. More than 5,000 cases arrive annually, yet only about 170 receive full consideration--oral argument and decision by written opinion.

The power to deny cases is the power to set the court’s substantive agenda--first battleground in the war over the direction of the court.

The importance of ideological changes in the court’s composition are clear. The Warren court took many cases involving the rights of the accused in order to extend the guarantees of the Bill of Rights to individuals in state as well as federal courts. By contrast, the Burger court increasingly selected cases to cut back, if not reverse, that extension.

Such trends are certain to continue. In recent years the court took cases involving rights of the accused at the behest of the government, rather than at the request of individuals challenging governmental action. While the Warren court was sympathetic to cases brought by indigents, the Burger court became hostile. In 1969-72, an average of 30 such cases were granted each term. After Richard M. Nixon’s last two appointments, the average dropped to 16 during 1972-80. Since Ronald Reagan named O’Connor in 1981, only eight per term have been granted. On individual rights, the Warren court decided against the government 66% of the time, the Burger court only 44%. The percentage could drop under Rehnquist, whose record of voting for the government is unsurpassed.

As chief justice, Rehnquist has a greater role in structuring the court’s agenda. And he will have more interest and success in doing so than Burger, who devoted more effort to administrative duties. In addition, the way cases are granted will work to his advantage.

Before each weekly conference, the chief justice circulates two lists of cases as the basis for discussions. On the first--the Discuss List--are those few deemed worthy of conference time. Attached is a second, much longer list--the Dead List--of cases considered unworthy, and simply denied. Any justice may request that a case be put on the conference agenda. But the justices no longer individually review each case. They all delegate initial screening to law clerks, who write memos recommending action. Brennan, Marshall and Stevens each have their clerks screen cases. But the others--including all the conservatives--share memos prepared by a pool of their 23 clerks. With those memos, and first crack at the Discuss List, Rehnquist could not be better positioned to get consideration of cases he wants reviewed.

What happens at conference determines which cases are granted. But more crucial is how the justices vote to grant review. Cases are granted on the vote of only four justices. This informal “rule of four” was adopted more than 60 years ago, to cut back on the workload while allowing review of cases that some justices feel strongly about.

The rule of four takes on greater significance with ideological shifts. In the early Burger years, for example, less than 20% of cases granted were on the basis of only four votes, but in recent years, as many as 30% were so selected. The four votes often came from those who pool memos and have similar ideological orientations. Rehnquist--with Scalia, O’Connor and White--is now positioned to dictate the court’s agenda.

The advantages of being chief justice and the rule of four give more weight to Rehnquist’s personal skills in getting his agenda adopted. Controlling the agenda is the first step in altering the court’s direction and redefining its role in American society.

Some recent trends will continue. In addition to being unsympathetic to claims of the poor and favorably disposed to the government, the Rehnquist court will probably take more cases involving federalism and separation of powers. Prominent criminal justice issues will involve fair trial procedures, double jeopardy and the factual guilt of the accused--such as whether a “harmless error” occurred in prosecution and conviction. The Fourth and Fifth Amendments will increasingly be viewed in a dim light. Other civil-rights cases could involve freedom of speech and the electoral process, government liability and reverse discrimination.

In the long run, the Rehnquist court could set its agenda to radically redefine its institutional role. In the last 50 years, the court has stood as guardian of individual rights. The Warren court forged an egalitarian revolution that opened up the democratic process. By contrast, the Rehnquist court would no longer look to the vindication of civil rights and liberties, but instead to the arbitration of political disputes between the President and Congress and between federal and state governments. The court’s agenda would enlarge presidential power and elevate states’ rights above federal law.

How much and how fast the court changes remains to be seen. But the Rehnquist court will not be one of self-restraint. The trend toward judicial activism will continue, but in a counterrevolutionary, reactionary direction.