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Blackmun, Marshall: Last Bastion of Court Liberalism : Judiciary: The two justices, without Brennan, will likely find themselves more overwhelmed by the forceful conservatives nominated by Reagan.

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TIMES STAFF WRITER

Justice Harry A. Blackmun recently expressed his frustration with the new conservative bent of the Supreme Court by describing himself and the other liberals on the bench as “three old goats” whose views are ignored.

And now there are two.

Justices Blackmun and Thurgood Marshall were left as the sole consistent liberal voices on the bench as of Friday, when Justice William J. Brennan Jr. resigned. Blackmun is 81; Marshall 82.

Together the three men could often count on moderately liberal Justice John Paul Stevens to vote with them, and, therefore, needed only one conservative to support their view in order to write a majority opinion.

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But more and more frequently, even with Brennan on the bench, the aging liberals were finding themselves overwhelmed by the staunch and energetic conservatives nominated by President Ronald Reagan.

The five conservatives include:

--William H. Rehnquist, 65. Appointed by Richard M. Nixon in 1971, Rehnquist has been the court’s most unwavering conservative. He favors the death penalty and prayer in the schools, and opposes all forms of affirmative action. A dissenter in the original Roe ruling, he believes that the right to abortion should be overturned.

In 1986, Rehnquist often said he was bored with the court and considered retirement. But Reagan rejuvenated him by appointing him chief justice. Now, in good health and with the departure of his longtime liberal adversary, Rehnquist has a chance to make a lasting mark on American law.

--Byron R. White, 73. He is a gruff, terse jurist who has been a law and order conservative ever since he was appointed by President John F. Kennedy in 1962. He dissented in the Roe case along with Rehnquist and wants the ruling overturned. Generally, he joins the conservatives, but he is less enamored of “state’s rights” than the others. And when Congress enacted an affirmative action plan for radio and television, White split from the conservatives and upheld the plan. His health remains good and he has said he has no plans to retire.

--Sandra Day O’Connor, 60. The court’s only woman, O’Connor has been a moderate conservative since her appointment by Reagan in 1981. She generally votes with Rehnquist, but sometimes stakes a separate, middle position. So far, she has refused to go along with the move to overturn Roe vs. Wade. O’Connor has said she sees affirmative action as reverse discrimination. However, she has also said it can be used in rare situations where past discrimination was blatant. For the last two years, O’Connor has been the crucial swing vote, but her role may be eclipsed if another conservative joins the court. Last year, she was operated on for breast cancer and underwent chemotherapy, but she kept up full duties on the court and has told friends her health is good.

--Antonin Scalia, 54. A conservative intellectual appointed by Reagan in 1986, Scalia has tried mightily to move the court sharply to the right on abortion and civil rights, but without notable success. He says the court should let the states decide matters such as abortion and the “right to die,” but should declare that any government preference based on race is unconstitutional. On the bench, Scalia is a lively questioner and vigorous debater who appears to relish his work.

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--Anthony M. Kennedy, 54. A former appeals court judge from Sacramento picked by Reagan in 1987, Kennedy has proved to be a reliable, if low-key, conservative. Like Scalia, he joined with the liberals to uphold the right of a protester to burn an American flag. Otherwise, he has voted consistently with Rehnquist. Tall, lean and athletic, Kennedy looks more like a vigorous politician than a graying justice. He too is likely to be on the bench for decades.

The court’s liberal-to-moderate bloc includes:

--Marshall, a historic figure who led the legal fight to end racial segregation in America. In 1967, President Lyndon B. Johnson made him the first black to sit on the high court. Marshall, along with Brennan, has been the court’s most vocal liberal advocate. He believes that the death penalty is unconstitutional and dissents from every execution. He favors affirmative action and the right to abortion.

But in recent years, Marshall’s role on the court has been limited. He shows up for the oral arguments, casts his votes, but otherwise takes little part in the day-to-day business of writing opinions. He has been plagued with declining health for nearly two decades. He is overweight and suffers breathing difficulties, yet he says he has absolutely no plans to retire. “I was appointed for a life term and I intend to serve it,” he has said.

--Blackmun came to the court touted as a conservative by Nixon in 1970, but he surprised everyone when he wrote the 1973 Roe vs. Wade ruling legalizing abortion. Since then, he has been generally on the liberal side, especially in civil rights and civil liberties. He is the court’s most fervent advocate of the right to abortion, and he has said in the past that he did not plan to retire if that right was in jeopardy. When the court recessed in June, Blackmun took off for a camping trip in Wisconsin and has told aides he is “recharged” and healthy.

--Stevens, 70. A moderate liberal appointed to the court by President Gerald R. Ford in 1975, Stevens has been an enigma to his colleagues. White-haired and bow-tied, Stevens is a brilliant and quick thinker, but he is also extremely independent. He votes with the liberals on abortion and most civil rights issues, although he usually states an idiosyncratic reason for his decision.

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