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The Supreme Court Turns Right to Locate the Real Reagan Legacy

<i> Herman Schwartz, professor of law at American University, is the author of "Packing the Courts" (Scribner's)</i>

The Reagan Supreme Court opens its first full year with more hot potatoes on the plate than at any time in recent years. Affirmative action, the law on private discrimination against minorities, the death penalty for young people and for the mentally retarded, drug testing, new sentencing guidelines, the constitutionality of nativity scenes and menorahs in government buildings are but some of the current hard questions.

The controversies provide a good opportunity to see whether President Ronald Reagan has succeeded in pushing the federal judiciary to the right. Three retirements, including the departures of Chief Justice Warren E. Burger and the most important swing vote, the moderate conservative Lewis F. Powell Jr., gave the President a chance to put three youthful, energetic conservatives on the court, and to select William H. Rehnquist, the most conservative justice in recent years--at least until the appointment of Antonin Scalia--as chief justice.

Conventional wisdom maintains that Presidents are frequently disappointed in their appointments and some observers suggest that once again, this has happened. Even though the full Reagan court was in place last February, when Justice Anthony M. Kennedy joined the court, the Administration challenge to the independent prosecutor statute lost 7-1, drawing only Scalia’s vote; the Central Intelligence Agency lost in the Supreme Court for the first time when the agency tried to prevent review of having fired a homosexual, and the court refused to allow the District of Columbia to ban hostile demonstrations at the gates of foreign embassies, overturning a lower-court decision by Judge Robert H. Bork. Rehnquist joined the liberal side in many of these cases.

So what’s going on? Were Rehnquist and other Reagan appointees closet liberals? Hardly. A closer look reveals conventional wisdom is quite wrong.

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Apart from the independent counsel controversy, there were few big cases last term and most big ones went for the conservatives. Rehnquist’s liberalism was more apparent than real. Perhaps most important, Kennedy showed a very conservative side in several of the court’s most contentious areas--notably civil rights and religion.

The independent counsel case was easy. Until the Administration undertook a major constitutional campaign to build up the presidency at the expense of the other two branches, few seriously believed that the independent counsel statute was unconstitutional. Article II of the Constitution provides for the appointment of “inferior officers” by a court when Congress thinks it appropriate, and this seemed ample authority. Widely accepted notions of judicial restraint also counselled against striking down a statute with such strong textual support, one overwhelmingly passed by Congress and signed by the President.

None of these considerations, however, seemed to bother then-Atty. Gen. Edwin Meese III, two Reagan appointees on the Washington Court of Appeals or Scalia. In a remarkable exaltation of the presidency, they attacked the statute as an unconstitutional encroachment, insisting that any diminution in presidential authority justified, as Scalia put it, grieving for the Constitution,

Their argument fell on deaf ears, rightly. Not only does constitutional text justify the law, but constitutional structure involves many overlapping powers among branches in order to create the checks and balances on which our system really rests.

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Most other major cases were won by the conservatives. The court, for example, allowed police to rummage freely through garbage put out for collection, without a warrant. It continued to subordinate the rights of public school students to the authority of administrators, this time allowing a high school principal to censor a journalism-class newspaper whenever that is pedagogically “reasonable.” And with Kennedy making the majority, it allowed a state to deny free school-bus service to poor people.

More important--and a sign that Reagan’s defeat in the Bork nomination may have been only a battle in an otherwise victorious war--were two other Kennedy votes. In Patterson vs. McLean Credit Union, the court decided to reconsider its landmark decision of 12 years ago, that the 1866 Civil Rights Act forbade private discrimination in various contractual transactions. In Bowen vs. Kendrick, the court allowed for certain federal grants to religious institutions. In each case, Kennedy’s vote made a 5-4 majority and in each, his predecessor, Powell, might well have voted the other way.

In 1968, a 7-2 majority of the Warren Court ruled in Jones vs. Alfred H. Mayer Co. that the 1866 Civil Rights Act barred discrimination against minorities in real-estate transactions. Eight years later, in Runyon vs. McCrary, a 7-2 majority of the Burger court came to the same conclusion with respect to other contractual arrangements. Although Justices Powell and John Paul Stevens III had doubts about the court’s interpretation, they agreed on the precedent as “an important part of the fabric of our law,” in Powell’s words, and there was no good reason to upset it.

Since 1976, the 1866 act has become even more important. Several Supreme Court decisions and more than 100 lower court decisions have relied on it, and the community in general has assumed its continuing validity. Congress endorsed it not once but twice. The decision has not been undermined by subsequent legal, economic or social developments, nor has it proved unworkable or inconsistent with the nation’s moral development. The only issue raised by the parties was whether the statute covered racial harassment by an employer.

Thus it came as a complete shock when five members of the court, including Kennedy, decided on their own to reconsider Runyon. Alarmed at the prospect of the decision being overturned, 66 senators, 119 representatives, 47 attorneys general and more than 110 organizations of all kinds have urged the court to reaffirm Runyon and to avoid the turmoil that would be created by rejecting the law and behavior based on it. The case will be heard Wednesday.

In some ways, Kennedy’s position in Bowen vs. Kendrick is an even more significant indicator of his attitude in a controversial area. He may yet vote to reaffirm Runyon, but in Bowen he made the 5-4 majority allowing federal grants to religious institutions to counsel young people about premarital sexual relations. In line with prior Supreme Court rulings, Rehnquist’s opinion for the majority imposed some limitations on how religious the grantee could be and still be eligible; Kennedy and Scalia, however, would even dispense with those limitations.

The court has agreed to decide whether Pennsylvania localities can put a nativity scene in a courthouse at Christmas, and a menorah in the Pittsburgh City Hall during Hanukkah (alongside a Christmas tree); the decision will tell us a good deal about whether Kennedy’s arrival will substantially lower the wall of separation between church and state.

The Rehnquist “liberalism” was not pivotal. In all cases where he cast a liberal vote, except for one relatively minor issue, there were enough other liberal votes for a majority. Even if Rehnquist had taken the conservative side to dissent, either with others or, as happened so frequently in the past, by himself, the result would have been the same.

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But had Rehnquist been in dissent, he would have lost control over authorship of the majority opinion. The chief justice has that authority when in the majority; when the chief justice is in dissent, the senior member of the other side has that authority. In 1986-87, Rehnquist’s first year as chief justice, Justice William J. Brennan Jr. wrote most of the big decisions because Rehnquist dissented so often. Last year, Brennan wrote relatively few. Rehnquist had wised up.

Although predictions about the Supreme Court are notoriously foolhardy, signs are not favorable for liberals. If Vice President George Bush wins in November, his ultraconservative supporters like Sen. Jesse Helms (R-N.C.) will surely urge him to replace some of the aging and next-departing justices with Bork look-alikes; current justices Thurgood Marshall and Harry A. Blacknum are 80; Brennan is 82. Even if Michael S. Dukakis wins, the Kennedy appointment may already have assured a long-term tilt to the right. The Bork nomination battle may turn out to be just a noisy historical footnote.


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