Rehnquist Court Plays Fair

The clamor over the Supreme Court nomination of Robert H. Bork brings to mind last year’s clamor over the elevation of William H. Rehnquist to be chief justice. Rehnquist’s critics direly predicted that he would marshal the powers of his new office to manipulate the Supreme Court to the political right. Now, with the nomination of Bork to replace Justice Lewis F. Powell Jr., the critics again have begun to predict fundamental change ahead at the court.

It is impossible to know what the future may hold with Bork replacing Powell. But it may be instructive to examine the first year of the Rehnquist court to see whether the critics correctly predicted a lurch to the right.

So far they have been dead wrong. Liberal Justices William J. Brennan Jr. and Thurgood Marshall last year enjoyed more influential writing opportunities than they have in years. In part this is because Rehnquist appears to be playing fair with his colleagues and the court’s internal rules--much more so than former Chief Justice Warren E. Burger allegedly did.

To understand why this is so, it is important first to understand how the court’s opinion-writing assignments are made. The justices cast tentative votes on cases within days of hearing oral argument. One justice then is assigned to write a proposed majority opinion. The chief justice makes the assignment if he votes with the tentative majority. If not, the assignment is made by the senior associate justice who is in the majority, normally Brennan.

Control over writing assignments is critical. Who writes an opinion often is nearly as important as which side wins. An opinion does not merely resolve the case under review; its language provides guidance for lower courts in deciding future cases involving different facts. Although any justice may write a separate opinion, as a practical matter the justices accord substantial deference to the justice assigned to write for the court majority.

Against this background, the significance of the opinion-assigning power becomes clear. Consider, for example, the recent decision upholding affirmative-action preferences for women in awarding promotions (Johnson vs. Santa Clara Transportation Agency). Chief Justice Rehnquist voted with the minority at the initial conference; Brennan, the senior member of the majority, therefore controlled the writing assignment. Brennan assigned the case to himself, and wrote an extremely broad decision upholding the affirmative-action program and rejecting the claim of a more qualified male applicant. Had Rehnquist initially voted with the majority, no matter what his final vote, he could have assigned the case to someone like Powell who might have written a narrow, fact-specific decision of less sweeping precedental effect.

It is interesting to contrast Rehnquist’s use of the assignment power with that attributed to his predecessor. Several writers have accused Burger of casting “phony votes” in order to control opinion-writing assignments. For example, Burger is alleged to have voted tentatively with majorities--even ones with which he did not agree--in order to retain control over writing assignments at Brennan’s expense. Under the Burger regime, Brennan and Marshall often found themselves writing non-ideological opinions like those dealing with hydroelectric power rates, obscure provisions of the tax code, administrative law minutiae and the Amtrak regulatory statute.

Whatever may be the truth of the allegations about Burger, the writing assignments under Rehnquist appear to be following a different pattern. The court’s internal workings in individual cases are hard to know, because justices and their law clerks are expected to keep such matters confidential. But preliminary evidence suggests that Rehnquist is playing fair with his colleagues. This year, in addition to the affirmative-action case, Brennan and Marshall wrote for the majority in many significant cases--including those involving the rights of persons with tuberculosis (and arguably AIDS), railroad strikers, pregnant workers and public employees’ exercise of free speech. Another of their opinions nullified a state’s attempt to require the teaching of “creation science.” Preliminary evidence suggests, in sum, that Brennan and Marshall may be enjoying opportunities for greater influence under Chief Justice Rehnquist.

The record of the 1986-87 Rehnquist court contains other surprises. Much has been written about the key role played by the “moderate” Powell in many of this year’s major decisions. What may surprise some of Rehnquist’s critics is that “conservative” Rehnquist voted with “moderate” Powell in more than 85% of these.

I do not suggest that Rehnquist somehow has been born again with different ideas. Nor do I suggest that Brennan and Marshall command majorities for their views in all or even most cases. I do suggest that this term’s evidence tends to show that, at least thus far, there has been no lurch to the right. As the debate on Bork’s nomination proceeds, the Senate should keep in mind that the prophets of constitutional doom aren’t always right.