NEWS ANALYSIS : Court Backs Government Against Citizen : Rehnquist Gavels an End to Era of Judicial Activism

When Chief Justice William H. Rehnquist lowered his gavel Monday on the 1989 term of the Supreme Court, he marked the end of an era of judicial activism that had lasted four decades and profoundly transformed the structure of American government and society.

It was an era in which the high court--and the rest of the federal judiciary, following its lead--took center stage in American politics, staking out a role as a powerful, persistent and controversial protector of minority rights.

This year--the first of what could truly be called the Rehnquist Court--the justices reversed field almost across the board.

On issues large and small, from abortion and civil rights to the noise level of rock music in a city park, the message from the high court was the same: It will no longer overrule decisions made by political majorities. Challengers who seek to assert constitutional claims against government decisions will almost invariably lose.

There were exceptions--most notably the high court’s decision that the First Amendment protects political protesters who burn the American flag. But, beyond the important but narrow area of political expression, the court’s term was remarkable for its conservative consistency.

Perhaps most remarkable was that the court’s transformation took so long.

For two decades, Americans have been electing presidents who vowed to rein in the “judicial activism” of the Supreme Court, and Presidents Richard M. Nixon, Gerald R. Ford and Ronald Reagan appointed eight justices.

But it was only with Reagan’s last appointment--California federal judge Anthony M. Kennedy--that conservatives succeeded in creating a solid five-vote majority.

The chief architect of the court’s reversal has been Rehnquist, who first began doing battle with the activist court when Nixon appointed him in 1969 to be his Justice Department’s legal counsel.

Two years later, Nixon placed him on the high court, where, for years, he was known as much for his solo dissents as for his stern view that the courts should seldom, if ever, overturn actions of the other two branches of government.

“I think this year we are seeing the ultimate Rehnquist philosophy at work--that the Supreme Court does not exist to reverse the considered decisions of state and local government,” said Rodney Smolla, director of the Institute of Bill of Rights Law at William and Mary College. “This looks like Richard Nixon’s view of federalism.”

The striking consistency of the pro-government rulings may mark this term as a historic turning point for the court.

Since the late 1940s, when the Supreme Court justices began to develop a new body of legal doctrines involving the constitutional guarantees of “equal protection of the laws” and “due process,” the court has readily invoked the Constitution to reshape government at all levels.

The court in this new role under former Chief Justice Earl Warren took its first dramatically public step in 1954, when the justices declared an end to officially segregated public schools.

Nixon Vowed to Alter Court

Twenty years ago, President Nixon vowed to move the Supreme Court to the right and to return power to state and local governments. Although his four appointees, including Rehnquist, helped form a new pro-police majority on many crime issues, the court continued to rule for the individual and against governmental units on such social issues as affirmative action and abortion.

Now, however, the Rehnquist Court has made clear that it will not--except in the rarest of circumstances--use the Constitution to upset the actions of government. This was the term in which the Rehnquist Court--buttressed by Reagan’s three additions, Sandra Day O’Connor, Antonin Scalia and Kennedy--began to unravel the liberal decisions of the 1970s.

The one major exception was the flag case. On that issue, a five-member majority rallied behind a right that it regarded as fundamental.

“Political speech is the one area where liberals and conservatives can come together,” said Harvard law professor Richard Fallon. “Both sides can agree that is central to the meaning of the First Amendment.”

Beyond that exception, however, state and local governments won more authority to test their employees for drugs, to regulate abortion, to deny legal aid to Death Row inmates, to display religious symbols in public buildings, to question travelers who look like drug couriers, to use low-flying helicopters to search neighborhoods for drugs, to seize the assets of indicted racketeers and to execute murderers even if they are as young as 16 or mentally retarded.

In the 1973 Roe vs. Wade case, the court struck down all state anti-abortion laws and declared that the constitutional right to liberty and privacy included a woman’s right to end her pregnancy. Rehnquist, along with Justice Byron R. White, dissented.

On Monday, the last day of its 1988-89 term, the court took a significant step toward unraveling that right. Rehnquist, White and Reagan’s three appointees made clear that they would uphold an array of state regulations and limits on abortion.

“Nothing in the Constitution requires states to enter or remain in the business of performing abortion,” Rehnquist said in upholding Missouri’s ban on abortions in public facilities.

Of the five-member majority, O’Connor apparently balked at entirely overturning the constitutional right to abortion. As a result, the court in the fall will consider three challenges to state regulations governing teen-age abortions and abortion clinics.

Affirmative action by public agencies also was looked on unfavorably by the court.

In 1978, Rehnquist and White had dissented from the Bakke ruling, in which the court upheld the notion of educational preferences for blacks as a way to compensate for past discrimination.

This year, ruling in a Richmond, Va., case on public contracts, the court served notice that it will judge official preferences in favor of blacks just as critically as racial discrimination against blacks. The court ruled that a city program reserving 30% of public contracts for blacks violated a white contractor’s right to the “equal protection of the laws.”

That constitutional ruling was followed by five other decisions narrowing the scope of federal civil rights laws as they apply to private employers.

“We lost more in 2 1/2 weeks than we lost in the previous 2 1/2 decades,” Ralph Neas, executive director of the Leadership Conference on Civil Rights, said of the string of civil rights setbacks.

In June, the court all but overruled a 1971 decision that said employers violate civil rights laws if their hiring and promotion practices have the effect of excluding blacks, Latinos or women.

Changing course, the court said that statistical evidence showing that minorities have been excluded from employment or promotion does not by itself demonstrate bias. It allowed employers to rebut allegations of bias simply by providing legitimate reasons for their job policies.

“I can’t think of any term where the court sent out such a clear message,” said Geoffrey Stone, dean of the University of Chicago Law School. “It is that they are no longer going to give special protection to racial minorities.”

The message for the death penalty also was clear: State policies generally are acceptable, even if they are not widely shared by other states. The court is not a “committee of philosopher kings” with license to strike down punishments that most Americans might consider “cruel and unusual,” Scalia said.

In deciding whether the Eighth Amendment forbids a death sentence for a killer who is 16 years old or mentally retarded, Scalia said that public opinion surveys are irrelevant. What counts, he said, is state law.

Of the 37 states that authorize the death penalty, only 15--including California--specifically forbid it for murderers as young as 16. In fact, few states actually sentence such young killers to death. Only 27 of the nearly 2,200 Death Row inmates nationwide committed their crimes when they were under 18.

Nevertheless, the court upheld the death sentences on grounds that no “national consensus” has developed on the question.

In the religion area, the Rehnquist Court has been subtly redefining the First Amendment to give more breathing room to the government. The First Amendment both protects the “free exercise” of religion by individuals and forbids the “establishment of religion” by government.

In its last term, the court said that it no longer would force the government to bend its policies to protect minority religions. In rejecting an appeal by Indians from Northern California, the court said that the government need not alter its plans to build a road simply because the project would destroy a sacred Indian burial ground.

This week, the court set out a new policy for permitting more religious involvement in public life. It allowed a menorah to be part of a holiday display outside a county building in Pittsburgh because it was accompanied by Christian and patriotic symbols, but it ruled out a Nativity scene standing alone inside Pittsburgh’s City Hall.

Kennedy was one of four justices who voted to uphold both kinds of religious display. “Rather than requiring government to avoid any action that acknowledges or aids religion,” he said, “the Establishment Clause permits the government some latitude in recognizing and accommodating the central role of religion in our society.”

In the drug testing case, the court said that the Fourth Amendment’s ban on “unreasonable searches” by the government does not prevent officials from forcing public employees to undergo urinalysis. The government’s strong interest in weeding out drug users outweighs the privacy rights of employees, the court said.

Although many cases this year involved highly publicized national issues, the court took the same tack in a series of obscure disputes testing the powers of cities and states.

For example, the Dallas City Council had set up separate dance halls for teen-agers 14 to 18 years old. A lower court struck down the policy as an unconstitutional infringement on the “right to social association.” Rehnquist, speaking for the court in April, said that there is no such constitutional right and reinstated the city regulation.

New York City, aiming for noise control, ordered its technicians to monitor the sound equipment of rock bands playing in Central Park. An appeals court said that this violated the artistic right to free expression. The high court, disagreeing, revived the city order.

The Pennsylvania Legislature enacted a law saying that no utility may charge its customers for the cost of abandoned nuclear plants. A utility company said that the law violated the Fifth Amendment’s ban on the government’s taking of private property for public use without compensation. The court disagreed and upheld the state’s position.

The State University of New York imposed a policy prohibiting vendors or sales persons from selling products or making presentations on campus. An appeals court said that this violated the free speech rights of students. The high court disagreed and reinstated the regulation.

NOTABLE SUPREME COURT RULINGS IN 1988-89 TERM ABORTION--States may forbid abortions in public facilities and may impose some regulations for the purpose of “protecting potential human life.” Webster vs. Reproductive Health Services, 5-4 vote.

DRUG TESTING--Public employees who operate dangerous equipment, carry firearms or are involved in fighting illegal drugs may be required to undergo drug testing. National Treasury Employees vs. Von Raab, 5-4 vote.

--Unions in rail and airline industries may not block mandatory drug tests for their members. Conrail vs. Railway Labor Executives, 7-2 vote.

DEATH PENALTY--States may execute murderers as young as 16. Wilkins vs. Missouri, 5-4 vote.

--States may execute murderers who are mildly retarded, as long as a jury considers this factor in sentencing. Penry vs. Lynaugh, 5-4 vote.

RELIGION--A city may display religious symbols as part of a holiday celebration but may not do so in a way that appears to constitute an “endorsement” of one religious faith. Allegheny County vs. ACLU, 6-3 vote.

--Scientologists may not take a tax deduction for the fees paid to the church for “auditing,” a process of gaining spiritual competence. Hernandez vs. IRS, 5-2 vote.

--States may not deny unemployment benefits to a Christian who refuses to work Sundays. Frazee vs. Illinois, 9-0 vote.

--States may not give sales tax exemptions to religious magazines. Texas Monthly vs. Bullock, 6-3 vote.

RIGHT TO COUNSEL--Government may seize assets of an indicted drug dealer or racketeer and leave him with no money to hire a lawyer. Caplin & Drysdale vs. United States, 5-4 vote.

--Death Row inmates facing execution have no right to free legal help. Murray vs. Giarrantano, 5-4 vote.

FREE SPEECH--The First Amendment protects flag-burning as a form of political protest. Texas vs. Johnson, 5-4 vote.

--Government may not ban “dial-a-porn” calls between adults unless they are found to be obscene. FCC vs. Sable Communications, 9-0 vote.

--Law enforcement officials may not seize allegedly pornographic bookstores before a trial. Ft. Wayne Books vs. Indiana, 9-0 vote.

PRESS--A newspaper may not be punished for printing a crime victim’s name if it was obtained from the police. Florida Star vs. BJF, 6-3 vote.

--Reporters may not use the Freedom of Information Act to obtain FBI reports on a person’s criminal convictions. U.S. vs. Reporters Committee, 9-0 vote.

CIVIL RIGHTS--State and local governments may not reserve a percentage of public contracts for blacks or other minorities, except to overcome a clear history of past exclusion. Richmond vs. Croson, 6-3 vote.

--Minority employees may not rely on statistics alone to prove that job policies are discriminatory; employers need furnish only a legitimate reason to rebut evidence of bias. Wards Cove Packing vs. Atonio, 5-4 vote.

--Civil rights law barring racial discrimination in contracts does not cover racial harassment on the job. Patterson vs. McLean Credit, 5-4 vote.

--White employees may challenge in court an earlier court-approved affirmative action plan. Martin vs. Wilks, 5-4 vote.

--Employees may not challenge a discriminatory seniority policy after it has been in effect for 300 days. Lorance vs. AT&T;, 5-4 vote.

--A public employee may not win damages for racial discrimination from a city, county or school district without proving that top officials had a “policy or custom” of discrimination. Dallas vs. Jett, 5-4 vote.

SEX DISCRIMINATION--A boss who made sexist comments about a woman seeking a promotion must prove that his promotion procedures were fair. Price Waterhouse vs. Hopkins, 6-3 vote.

CRIME and LAW ENFORCEMENT--Police may use low-flying helicopters to search for drugs. Florida vs. Riley, 5-4 vote.

--Drug agents may stop and question persons who look like drug couriers. U.S. vs. Sokolow, 7-2 vote.

--Police do not violate Miranda doctrine by failing to provide lawyers for suspects undergoing questioning. Duckworth vs. Eagan, 5-4 vote.

--A defendant is not denied a fair trial when police lose evidence that might have exonerated him. Arizona vs. Youngblood, 6-3 vote.

--New federal sentencing rules that standardize punishments and abolish parole are constitutional, even though they were not enacted by Congress. Mistretta vs. U.S., 8-1 vote.

--A drunk-driving defendant does not have a right to a jury trial. Blanton vs. North Las Vegas, 9-0 vote.

BUSINESS--A multimillion-dollar punitive damage award is not an “excessive fine” banned by the Eighth Amendment. Browning-Ferris vs. Kelco, 7-2 vote.

--A business that engages in several acts of fraud may be sued under racketeering law and forced to pay triple damages. H.J. Inc. vs. Northwestern Bell, 9-0 vote.

--A utility does not have a right to charge customers for the cost of a failed nuclear plant. Duquesne Light vs. Barash, 8-1 vote.

--User fees may be imposed on businesses by government agencies without being enacted as taxes by Congress. Skinner vs. Mid-America Pipeline, 9-0 vote.

LABOR UNIONS--After a strike, a company may refuse to rehire senior union members in preference to younger workers who crossed the picket lines. TWA vs. Flight Attendants, 6-3 vote.

--A union may not discipline a dissident officer for exercising free speech. Sheet Metal Workers vs. Lynn, 8-1 vote.

STATES--States may not be sued for damages in a state court for violating the constitutional rights of their citizens. Will vs. Michigan State Police, 5-4 vote.

--State officials may not be sued for failing to carry out federal law requiring education for handicapped children. Dellmuth vs. Muth, 5-4 vote.

--States may be forced to pay for costs of toxic waste clean-up. Pennsylvania vs. Union Gas, 5-4 vote.

CITIES and COUNTIES--City and county officials may not be sued for negligence in failing to aid an abused child. Deshaney vs. Winnebago County, 6-3 vote.

--Property taxes on similar properties must be roughly equal. Allegheny-Pittsburgh Coal vs. Webster Co., 9-0 vote.

--A city may create separate dance halls for teen-agers. Dallas vs. Stanglin, 9-0 vote.

--A city may use its own technicians to control sound at rock concerts in a city park. Ward vs. Rock Against Racism, 6-3 vote.

PRISONS--Prisoners do not have a First Amendment right to receive magazines in the mail. Thornburgh vs. Abbott, 6-3 vote.

--Prisoners do not have a right to receive visitors. Kentucky vs. Thompson, 6-3 vote.