Brennan Steers Court Left Despite Rehnquist : Justice Has Succeeded in Drawing Moderates to Liberal Majorities in 16 Divided Cases This Year

By elevating staunch conservative William H. Rehnquist to be chief justice last year, the Reagan Administration hoped to tilt the Supreme Court toward the right.

But instead, the first term of the “Rehnquist court” has seen a pronounced shift to the left. The court’s liberal leader, 80-year-old William J. Brennan Jr., has put together a solid majority in a series of hotly contested cases.

In the view of Harvard University professor Lawrence Tribe, this is not the Rehnquist court at all. “It is more appropriate,” he said, “to say this is the Brennan court.”

Better Record This Term

Last year, Brennan and the liberal side prevailed in only 20 of the 69 cases with a liberal-versus-conservative split. So far in this term, however, Brennan’s faction has won 16 of the 26 divided cases.

And when the issue has been civil rights for blacks, women, handicapped people or aliens, Brennan has been on the winning side every time. That has given him the authority to determine which justice should write the opinion--and he has frequently chosen himself.

Only in criminal law and in cases of relatively little legal significance has Rehnquist been able to forge a conservative consensus.

“We have a true paradox here,” said University of Virginia law professor A. E. Dick Howard. “The Rehnquist court begins as a more liberal and activist court than the Burger court. In fact, some of these read like Warren court opinions.”

During the heyday of liberal activism in the 1960s under Chief Justice Earl Warren, Brennan was a key figure, helping to craft a court majority to expand rights for blacks, to give new protection to accused criminals and to broadly defend the rights to free speech. His star waned during the tenure of Chief Justice Warren E. Burger, who retired last year.

“It is ironic to see him return now to such a position of great influence,” Tribe said.

It is certainly not what conservatives had expected. “It’s been a disaster for us so far,” said Patrick McGuigan of the conservative Free Congress Foundation in Washington.

Despite the surprising results, legal scholars and attorneys who follow the high court say that both Brennan and Rehnquist are holding true to form.

Seen as a ‘Tactician’

Brennan, one scholar said, is a “tactician,” who can find a way to draw moderate justices toward a liberal result. Rehnquist, by contrast, is a rigid conservative, who has refused, even as chief justice, to temper his positions in an attempt to draw moderates his way.

Howard pointed to last week’s key ruling upholding affirmative action in promoting women.

In virtually every previous case involving affirmative action, Justice Lewis F. Powell Jr. has provided the deciding vote one way or the other. For example, Powell wrote the deciding opinion in the 1978 Bakke case, which upheld campus affirmative action plans so long as they did not rely on quotas that entirely excluded “innocent whites.”

At issue last week was the legality of a Santa Clara County plan under which a woman was promoted over a better qualified man to remedy a “statistical imbalance” in the number of women holding skilled jobs.

Brennan, needing Powell’s vote to have a majority, portrayed the county plan in a way that “sounded somewhat like affirmative action in a university,” Howard said. He said Brennan probably convinced Powell that Santa Clara County, far from following a rigid quota system, instead used sex as one of many factors in determining who received promotions.

Powell ultimately gave Brennan the crucial fifth vote, and Brennan wrote a sweeping decision giving employers wide latitude to use affirmative action in the workplace. Justice Sandra Day O’Connor also agreed with the judgment in this case but dissented from Brennan’s opinion.

Rehnquist joined new Reagan-appointee Justice Antonin Scalia, who wrote in a bitter dissent that the 1964 Civil Rights Act prohibits discrimination against “any individual,” including white males, based on race or sex. The Civil Rights Act, Scalia said, does not seek “the quite incompatible goal of proportionate representation by race and by sex in the workplace.”

O’Connor Derides Dissent

Though the Reagan Administration shares this unyielding opposition to affirmative action, only one other justice--Byron R. White--concurred in the Santa Clara case. Even O’Connor, a 1981 Reagan appointee, derided Scalia’s dissent as merely “a useful point of academic discussion” that “fails to reckon with the reality of the course that the majority of the court has determined to follow.”

In addition to the Santa Clara County case, Brennan has voted with the majority and Rehnquist has dissented since Jan. 1 in cases in which the court:

--Upheld, 6 to 3, a California law giving women a four-month disability leave after pregnancy.

--Gave new trials, in another 6-3 ruling, to blacks who were convicted by all-white juries and whose cases are on appeal.

--Told an Alabama town seeking to annex an all-white area that it cannot escape scrutiny under the Voting Rights Act simply because no blacks were immediately affected by the annexation (6 to 3).

--Allowed low-income tenants to sue public housing authorities to gain reduced utility charges (5 to 4).

--Ruled that a Seventh-day Adventist who was fired for refusing to work on Saturdays must be given unemployment pay (8 to 1).

--Held that a person with a contagious disease is covered by federal laws protecting “handicapped individuals” (7 to 2).

--Required the Alabama state police to give half of its promotions to blacks to overcome “egregious” past discrimination (5 to 4).

--Said aliens seeking asylum in the United States need to show only a “well-founded fear,” not a “clear probability,” of persecution upon returning home (6 to 3).

--Prohibited states from regulating sexually explicit programming on cable television (7 to 2).

Shift Hinges on Key Vote

In each case, the liberal core--Brennan, Justices Thurgood Marshall and Harry A. Blackmun and usually Justice John Paul Stevens--prevailed when Brennan was able to attract at least one other justice to his side.

Powell provided the key vote in the Alabama affirmative action case, as he did in the Santa Clara County case. White was converted to Brennan’s side in the cases involving voting rights and low-income housing tenants, while Scalia and O’Connor joined the liberal majorities in the pregnancy leave and alien asylum cases.

By contrast, Rehnquist has been unable to attract or hold the moderates.

“In a way, there is nothing terribly new here,” American University law professor Herman Schwartz said. “Rehnquist has spent his entire time on the court isolated on the right wing. I thought it possible he would moderate his views to control the court. That clearly has not happened.”

Former Chief Justice Burger was often accused of casting his vote with whichever side had a majority so that he could decide who would write the opinion.

“Rehnquist is true to his views,” Schwartz said. “He doesn’t play the bait-and-switch game.”

‘Splendid Chief Justice’

Tribe observed: “This gives new meaning to Brennan’s statement last year that Rehnquist would make ‘a splendid chief justice.’ He may have realized (Rehnquist) would adhere so closely to his conservative philosophy that he would be continually outvoted.”

Bruce Fein, a visiting scholar with the conservative Heritage Foundation, while conceding Brennan’s “string of impressive victories,” pointed out that Rehnquist has fared much better in criminal cases. Powell and Stevens often shift to the conservative side when the court is asked to expand rights for accused criminals.

The Rehnquist court, Fein observed, has cut back criminal suspects’ so-called Miranda rights to remain silent and to have a lawyer present during questioning.

“We seem to have a conservative consensus there,” Fein said. “But when you move away from the criminal area, Rehnquist has not prevailed.”