High Court’s Conservative New Guard Steers Debate

The generation gap on the Supreme Court has never been more apparent, and possibly never more significant, than it was last week.

For two hours, the justices heard arguments in the most important civil rights cases of the current term. And as so often has been the case lately, it was a mismatch.

The court’s energetic, acerbic conservative leaders--most of whom are in their 50s--picked apart the lawyers defending a federal policy that aids blacks and other minorities.

Meanwhile, the court’s three liberal advocates of affirmative action--all of whom are in their 80s--sat back in their leather seats and said nothing during the crucial first hour of arguments.

To the extent that the court’s oral arguments influence the outcome of the two related cases--and persuade Justice Sandra Day O’Connor, who probably will cast the swing vote--last week’s session tilted the debate in favor of the conservatives.

At issue is whether the federal government should give blacks, Latinos or women an edge in competing for new broadcast licenses to encourage a “diversity of viewpoints” on the nation’s airwaves.

More broadly, the two cases raise the question of whether the government should guarantee minority businesspeople at least a small share of billion-dollar contracts for highways, mass transit or subsidized housing.

But regardless of whether the issue at hand is abortion, free speech, crime, the death penalty, religion or civil rights, the same pattern has repeated itself frequently in the past year:

The court’s staunch conservatives--Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Byron R. White--quickly steer the debate in their direction. Rarely is a liberal advocate permitted to score a key point unchallenged. And lawyers for conservative causes, even when they stumble, are helped along by Scalia.

Since Scalia joined the court in 1986, he has been its star performer. One legal publication observed that if Supreme Court sessions were televised, Antonin Scalia would be a household name across the nation.

The son of an Italian immigrant, a top graduate of Harvard Law School and a former University of Chicago law professor, Scalia, 54, is articulate, engaging, quick-witted--and fiercely conservative.

On the bench, he can be whimsical and philosophical one moment, sarcastic and strident the next. He is rarely silent. Any attorney appearing before the court knows he or she will have to confront “Nino” Scalia, as he is known.

During Wednesday’s arguments, one lawyer challenging the Federal Communication Commission’s affirmative action policy went too far even for Scalia by asserting that members of Congress did not know what they were voting on when they ratified the policy.

“We enforce congressional statutes all the time, whether or not they knew what was going on,” interjected Scalia, eliciting laughter from those in the courtroom.

But affirmative action, like abortion, more often prompts a heated reaction from him. When attorney J. Roger Wollenberg said the FCC affirmative action program provides a benefit to those who come from disadvantaged backgrounds, Scalia pounced.

“It’s blood, Mr. Wollenberg, blood. Not background and environment,” Scalia said.

“It doesn’t matter where the person of that race was raised, in the most privileged family, in the most exclusive residential community. Blood.”

Still, what prompts even more comment from lawyers and visitors to the court is the evident decline of the aged liberals: Justices Thurgood Marshall, 81, William J. Brennan Jr., 83, and Harry A. Blackmun, 81.

Marshall has appeared badly winded at times after walking up a few steps to his seat when the gavel sounds at 10 a.m. When called on to read a few lines from an opinion being issued in his name, he has stumbled over the words, prompting embarrassed looks in the courtroom.

In a December decision, Marshall tried to describe a corporate tax case involving a British subsidiary of the Goodyear Tire & Rubber Co. Twice, he ran into the word “subsidiary” and stumbled. On the third try, he uttered a muffled “subs . . . subs . . . subsidiary. “

During an argument in the fall, Marshall suddenly asked a lawyer challenging a government policy why he was making a particular argument. After several justices exchanged pained looks, Marshall said he was “confused.” He had thought he was quizzing the government lawyer, not the one challenging the government.

Blackmun, mild-mannered and soft-spoken, is best known as the author of the 1973 Roe vs. Wade opinion. These days, he rarely joins in the substantive arguments, except to offer an occasional aside.

For example, an attorney in the FCC case noted that a woman who is a white Anglo can become a “Hispanic” by marrying a husband with a Spanish surname.

“I suppose it works the other way around, too,” Blackmun observed.

“No, your honor,” the lawyer gently replied, since a woman born with a Spanish surname can use her maiden name on a federal application to gain qualification as a “Hispanic,” regardless of her husband’s name.

Brennan, the court’s longtime liberal leader, has been troubled recently by an array of ailments, including a bout with the flu that kept him off the bench last week. For years, he has rarely asked questions in the courtroom, though in the court’s private conferences and in written opinions he is still considered a vigorous advocate for his views.

The youngest member of the liberal-to-moderate bloc, Justice John Paul Stevens, turns 70 on April 20. An appointee of President Gerald R. Ford, Stevens sports a bow tie and snow-white hair and has the gentle, inquiring manner of a professor. On occasion, he takes on Scalia in spirited sparring.

In private, the justices discount the significance of the oral arguments. Their decisions are shaped by briefs and lower-court records, they say. Most justices, having staked out strong positions over the years, are not swayed by a stylish argument in the courtroom.

But O’Connor, who turned 60 on Monday, carefully questions attorneys to pin down facts and positions. Like former Justice Lewis F. Powell Jr., she has been less committed to a consistent ideology than to a fair decision in each case. Thus, she seems open to being influenced by a well-argued case.

During the opening minutes of Wednesday’s arguments, Scalia and Rehnquist quickly scored several important points. The lawyer for a white-owned TV station said he was challenging as unconstitutional the preferences based on “race, gender or ethnic background.”

Scalia interrupted: “Is gender really a part of your case?”

Yes, the lawyer said. After some coaxing by Rehnquist and Scalia, the lawyer finally agreed that in fact, the crucial issue in the case was a racial preference, not one based on gender. Since O’Connor, the only female justice, has often voted to uphold affirmative action for women, Scalia wanted to make clear that sex discrimination had no role in the case.

In the past, O’Connor also has voted for affirmative action that is designed as a “remedy” for past blatant discrimination, but not as a matter of social policy. Pushed by Scalia and Kennedy, the FCC lawyer conceded the commission’s program was “not remedial,” but rather had the social goal of encouraging diverse perspectives on the air.

In the 15 minutes he was allotted, FCC assistant general counsel Daniel Armstrong tried to defend the common-sense assumption that black or Latino broadcasters might offer different perspectives than white males.

But he faced a barrage of questions from Scalia, Rehnquist and Kennedy.

Do you mean all blacks think alike? Are black listeners only interested in “black programming, whatever that means?” Scalia asked. What evidence is there, Rehnquist asked, that the race of the station owner dictates the programming? Because of the demands of the market, wouldn’t a white, Anglo station owner in a Latino area cater to the interests of Latinos?

If it had been a two-hour boxing match, Scalia and his fellow conservatives piled up such a big lead on points during the first half that they would have been able to coast during the second.

Indeed, after the first hour, they sat back in their seats, allowing the attorneys to drone on uninterrupted, as if the outcome already had been settled.