Businesses, Taxpayers Getting Same Cold Shoulder as Criminals : Rehnquist a ‘Hard Sell’ in Constitutional Cases

The Supreme Court under Chief Justice William H. Rehnquist has been giving corporations, property owners and taxpayers the same cold shoulder of late that it has shown to criminal defendants.

In several recent rulings, including last week’s opinions on interstate telephone calls and nuclear power plants, the high court flatly rejected claims based on the Constitution and instead upheld decisions made by state governments.

Among those on the losing end were a utility corporation that was denied the right to recoup any of the money it invested in an abandoned nuclear plant and Illinois telephone customers who contended their state was unfairly taxing interstate commerce.

Disappoints Conservatives

For some conservatives, these court rulings marked a disappointment. They had hoped the Rehnquist court would be a diligent protector of private property and the free market.

But others credit Rehnquist with a stingy consistency.

“His attitude seems pretty much the same across all classes of plaintiffs, whether business groups or others,” said University of Minnesota law professor Daniel A. Farber.

Charles Cooper, formerly a Justice Department official in the Reagan Administration and a one-time Rehnquist law clerk, agrees. “He’s a hard sell when it comes to constitutional claims,” Cooper said.

Lawyers for criminal defendants and civil rights plaintiffs have long known that they can expect a thumbs-down from Rehnquist if they appeal to the Supreme Court. But plenty of others--including basketball coach Jerry Tarkanian, San Jose apartment owners and Reagan Administration officials under investigation--have gotten the same treatment in the last year.

Since Justice Lewis F. Powell Jr. retired in June, 1987, Chief Justice Rehnquist has been in firm control of the court.

Liberals Shut Out

The senior liberal, Justice William J. Brennan Jr., favors relying on the Constitution to overturn actions by state governments, the police or regulatory bodies. However, in the last 18 months, Brennan and his fellow liberals have been shut out in the major cases.

Rehnquist usually gets the support of fellow conservative Justices Byron R. White, Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy. The liberals--Justices Thurgood Marshall, Harry A. Blackmun, John Paul Stevens and Brennan--usually join the rulings against business interests, but they often dissent when the claims come from criminal defendants.

A look at recent rulings illustrates Rehnquist’s influence.

--In the utility case, the company said the state had prevented it from recouping $35 million lost on the nuclear plant which, it said, violated the Fifth Amendment guarantee that “private property (shall not) be taken for public use without just compensation.”

‘Economic Niceties’

Rehnquist, writing for the court, said he would not closely scrutinize decisions made by state rate-making bodies, particularly when the company’s $35-million loss was less than 2% of its overall value and the company was still getting 11.6% return on its investment. “The Constitution is not designed to arbitrate these economic niceties,” he wrote in typical Rehnquist style.

--The GTE Sprint Corp. and a group of Illinois taxpayers attacked that state’s 5% charge added to the cost of interstate telephone calls, contending this was unconstitutional as a tax on interstate commerce. On an 8-1 vote, with Rehnquist assenting, the high court disagreed, clearing the way for other states and cities to tap this lucrative source of revenue.

Coach Loses Case

--University of Nevada Las Vegas basketball coach Jerry Tarkanian contended his constitutional right to “due process of law” was violated if the National Collegiate Athletic Assn. could force his suspension for two years. On a 5-4 vote, with Rehnquist in the majority, the high court disagreed. As a private rule-making body, the NCAA did not have to abide by constitutional standards, the court said in December.

Sexual Assault Case

--An Arizona man convicted of sexual assault said he was denied a fair trial because the police lost evidence that could have exonerated him. A state appeals court agreed, but the Supreme Court reversed the ruling. Such a police mistake is not grounds for throwing out a conviction unless it can be shown the officers acted in “bad faith,” the chief justice wrote. The three liberals dissented.

--In the most crucial decision of the term ending in June, several Reagan Administration officials contended that independent prosecutors should be declared unconstitutional because, according to a strict reading of one phrase in the Constitution, “all officers” of the federal government must be appointed by the President. In a ruling that shocked many conservatives, Rehnquist disagreed and upheld the law as written by Congress. His opinion pointed out that throughout American history, many officials of the U.S. government had acted without a direct appointment by the President. Scalia dissented.

--Apartment owners from San Jose asked the court to invalidate that city’s rent control law, which limited rent hikes for low-income tenants to 8% per year. This violates the private property clause in the Fifth Amendment, the owners said. Rehnquist, writing for the court, disagreed last February, noting that the owners had not presented any hard evidence that they had suffered because of the law. Scalia issued a strong dissent in this case too.

Rehnquist was on the losing side in two key cases decided last June when some of his fellow conservatives voted to strike down state laws.

With Scalia writing the opinion, the court in a surprise decision rejected an Iowa law permitting child victims of sexual abuse to testify in court behind a one-way screen. This violated the defendant’s right to confront his accuser, Scalia said. Rehnquist disagreed and voted to uphold the man’s conviction.

The court also struck down a North Carolina law requiring professional solicitors for charity to tell donors how much of their money would go to charity. The 7-2 majority said this law violated the free speech rights of the solicitors. Rehnquist and O’Connor voted to uphold the law.