Liberals and Conservatives Uneasy as Rehnquist Veers Court to Center

In his second year as chief justice, William H. Rehnquist firmly put his stamp on the Supreme Court. But it was not always the stamp that his conservative admirers wanted.

As a junior member of the court since 1972, Rehnquist was its most strident conservative: strongly in favor of presidential power, tough on crime, skeptical on civil rights and civil liberties.

And, in his first year as chief justice, Rehnquist frequently found himself isolated by his ideological rigidity. Justice William J. Brennan Jr., the leader of the court’s liberal wing, wrote many of the court’s key decisions.

Downright Liberal

In the term that ended last week, by contrast, the chief justice clearly established this as the Rehnquist court. In the process, he frequently sounded downright liberal.

He came down in favor of the First Amendment, against property owners and against the CIA. And, last week, in rebuking President Reagan and Justice Department conservatives, he wrote the court opinion upholding Congress’ power to create independent prosecutors to pursue corruption in the executive branch.

Reagan’s three appointees to the court also clarified the roles they are likely to play in the future. Antonin Scalia became the court’s dogmatic conservative; Anthony M. Kennedy, who joined the court only in February, appeared to be a more cautious variety of conservative, and Sandra Day O’Connor showed signs of becoming the court’s swing vote.

A Changed Chief Justice

However the rest of the court lines up, the chief justice was not the Rehnquist of old, whom conservatives loved and liberals loved to hate. But the two sides see quite different forces at work.

To some conservatives, Rehnquist has decided that, if you can’t lick ‘em, join ‘em. They fear the chief justice may be emerging as a genuine moderate who is more interested in building a consensus on the court than in maintaining his ideological purity.

Not a Crucial Vote

However, liberal lawyers still regard Rehnquist as a true-blue conservative who is merely biding his time. When Rehnquist can muster a five-member conservative majority, they say, the high court rules that way. Otherwise, Rehnquist is willing to join the majority and write an opinion that gives the liberals no more than necessary. In no major case, they note, did Rehnquist provide the liberals with their crucial fifth vote.

The term that ended Wednesday provided ample evidence for both views.

Conservative lawyers are disheartened by both the style and the substance of Rehnquist’s recent opinions. As an associate justice, Rehnquist’s opinions and dissents were often biting and sarcastic, sometimes sweepingly philosophical, rarely dull. He took on the liberal opposition directly and blazed away.

Now a new, bland version of Rehnquist appears in print.

Recent Opinions ‘Dull’

“It certainly does not read like the Rehnquist of old,” said University of Chicago Prof. Michael McConnell, a former Justice Department lawyer. “Whatever you could say about him, he was one of the court’s best writers. His recent opinions are dull and not very persuasive.”

In last week’s opinion in the independent counsel case, Rehnquist offered a careful point-by-point rejection of the conservative contention that the appointment of prosecutors to investigate executive branch corruption impinges on presidential powers. The legal views expressed by Rehnquist, McConnell said, are “utterly irreconcilable” with his work in the 1970s.

Other conservatives say that Rehnquist’s position is frequently dictated by tactics. “I think he threw his vote to keep control of the opinion,” said former Justice Department lawyer Bruce Fein, another conservative who closely tracks the court’s work.

Under procedures of the court, if the chief justice votes in the majority, he decides who writes the opinion. If not, that power falls to the senior member in the majority, which is usually the liberal Brennan.

Series of Liberal Victories

Last year, in Rehnquist’s first term, Brennan eked out a series of 5-4 victories in the most crucial cases involving civil rights and civil liberties. Moderate Justice Lewis F. Powell repeatedly supplied Brennan with a decisive fifth vote.

But this year, with Powell replaced by Kennedy, Rehnquist held sway in nearly all the key cases, and Brennan was unusually silent.

The term’s most important ruling written by Brennan was also notably ironic. Last week, he took the side of the conservative National Right to Work Committee and concluded that unions may not force dissident members to pay full union dues if some of the money supports political causes. To do so, Brennan said, violates the free speech rights of the dissidents.

None of the moderate-to-liberal opinions written by Rehnquist were in cases in which the court was evenly divided. The court was unanimous when Rehnquist wrote an opinion strongly defending the freedom of the press in a suit brought by the Rev. Jerry Falwell against Hustler magazine Publisher Larry Flynt.

Rehnquist was in a 7-1 majority in the independent counsel case, and he spoke for a 6-2 majority when the court gave a homosexual CIA agent the right to challenge the intelligence agency’s personnel policies in court.

Conservative Rulings

In cases in which one vote would make the difference, Rehnquist was always on the conservative side. In the last two weeks of its recent term, the court split 5 to 4 in ruling that military contractors are shielded from liability for defective products, that poor children do not have a right to free busing to their schools and that religious groups may receive government funds to teach teen-agers about sexual prudence.

The most surprising development of the term was a three-page announcement in April that the court would reconsider a 1976 ruling concluding that black children may not be excluded from private schools. Rehnquist and Justice Byron R. White, who had dissented in the 1976 case, were joined by President Reagan’s three appointees in deciding to reopen that case.

Civil rights and civil liberties lawyers say that that decision provided a telling harbinger for the emerging Rehnquist court.

“The opportunity for this court to make a real difference will come just as Reagan walks out the door,” said Marsha Levick, legal director for the NOW Legal Defense Fund. “During his term in office, Reagan has never had the right line-up of justices to get what he wanted on abortion, affirmative action and religion. Now, it seems that he has five who will support his agenda.”

During much of the term just completed, the court bided its time until a ninth justice could be seated. It avoided controversial issues such as abortion and affirmative action and instead decided an extraordinary number of cases posing procedural issues.

Move to Right Seen

Both conservative and liberal lawyers say that the court probably will move to the right during the next few years on the issues that the Reagan Administration has stressed--cutting back on affirmative action, giving religion a greater role in public life and granting states more authority to regulate abortion. The court already has become steadily tougher on crime in general and drug dealers in particular.

The pivotal vote in the next few terms is likely to be that of O’Connor. In the past, she has been skeptical of quotas to remedy race and sex discrimination but willing to support some affirmative action where blacks, Latinos or women have been excluded from jobs.

She has criticized rulings that have struck down state regulation of abortion but she has never gone so far as to say that she would vote to take away a woman’s constitutional right to choose an abortion.

As Fein put it, “Justice O’Connor will now play the role formerly played by Justice Powell.” Before his retirement in 1986, Powell’s vote typically decided the crucial cases on civil rights, religion and the death penalty.

Last week, in a concurring opinion that struck down a death sentence for a 15-year-old killer, O’Connor even sounded like Powell, the agonized middle-of-the-roader. In analyzing whether juveniles may be executed, she concluded that both sides in the debate were correct but ultimately cast the decisive fifth vote to throw the death sentence out.

“The conclusion I have reached in this unusual case is itself unusual,” O’Connor conceded.

Passionate Dissent Issued

Although O’Connor was sounding like Powell, Scalia was taking on the role formerly played by Rehnquist, the tough, doctrinaire conservative. In response to Rehnquist’s opinion upholding the independent counsel law, Scalia issued a passionate 38-page sole dissent, part of which he read from the bench as his eight colleagues sat by impassively.

Scalia, a former Justice Department official who was appointed to an appeals court and then to the Supreme Court by Reagan, is a vehement defender of presidential power. He suggested that allowing independent prosecutors to investigate top executive branch officials smacked of the beginning of a “modern dictatorship.”

In addition, Scalia wrote scathing dissents to Rehnquist’s opinions in the gay employee’s suit against the CIA and in the court’s dismissal of a challenge by a San Jose property owner to the local system of rent control. Scalia, a former University of Chicago law professor, is the court’s strongest advocate of property rights and free market economics.

Kennedy Not Dogmatic

Kennedy, the high court’s third new Reagan appointee, was not as feisty and dogmatic as Scalia, but he took the more conservative side in nearly every case in which he voted.

In his few written opinions, however, Kennedy seemed more interested in preserving the status quo than in following conservative dogma. In a complicated dispute involving the “gray market” importation of foreign goods bearing U.S. trademarks, Kennedy wrote a brief opinion that largely allowed the practice to continue.