As the Court Turns : TURNING RIGHT: The Making of the Rehnquist Supreme Court, <i> By David G. Savage (John Wiley & Sons: $22.95; 458 pp.)</i>

From 1986 to 1991, David Savage argues in “Turning Right,” the U.S. Supreme Court made dozens of decisions that marked a change in the institution’s outlook, changes as profound as the transformation wrought 50 years earlier by nominees of President Franklin D. Roosevelt. Justices named by Ronald Reagan (Sandra Day O’Connor, 1981; Antonin Scalia, 1986; Anthony Kennedy, 1987) and by George Bush (David Souter, 1990; Clarence Thomas, 1991), under the direction of William Rehnquist as chief justice (elevated by Reagan in 1986), formed a new majority. They abandoned the role of guarding individual liberties and civil rights of minorities that the Court had long played by vigorously applying the Bill of Rights, and, in general, began to defer to the will of the majority expressed in state and federal laws and in less direct ways.

But in one notable instance, the Reagan-Bush Court showed “an uncanny ability for misinterpreting federal legislation, at least according to the lawmakers in Congress,” in Savage’s words, especially in politically charged areas like racial discrimination, where the conservative views of the new Court majority clashed with moderate and liberal intentions of Congress. To Savage, who has covered the Supreme Court for the Los Angeles Times since 1986, the current Court is, by and large, what the Reagan and Bush administrations sought in their ideology-driven effort to reshape the federal judiciary: a deliverer of politically conservative results, through the exercise of judicial restraint when possible and otherwise through judicial activism.

“Turning Right” is an ambitious narrative about the recasting of an institution. Savage has drawn competent, opinionated judicial portraits and evenhanded sketches about recent political events, including the confirmation stories of recent nominees to the Court, and he has provided a sound chronicle of the evolution of significant Court decisions in the last half-decade. His book is readable and well reported, and, among Supreme Court watchers and perhaps in other quarters, it’s likely to stir lively talk.

The provocation won’t be the book’s thesis (overstated, I think), originality (not striking) or style (clean and unimpassioned, sometimes exaggerated but often admirably concise), but the factual nuggets it contains about behind-the-scenes dealings among the justices and their law clerks as Court decisions were reached. “Turning Right” does best when it concentrates on the justices’ conflicting points of view on legal questions presented in Court cases. Those accounts are meaty and not light reading, but they are satisfying: They are stuffed with background on why cases rose to the nation’s highest court, digests of judicial opinions, and, of course, the intriguing nuggets.

The not-surprising kicker is that Savage never identifies his sources for the nuggets, beyond the occasional “one justice commented” or “the clerks were surprised.” Over the past decade, the justices have partially lifted the veil of secrecy at the Court, so “Turning Right” isn’t likely to ignite the kind of debate the unattributed accounts and comments reported by Bob Woodward and Scott Armstrong in “The Brethren” did in 1979. Yet, as Savage puts it, “Veteran Court reporters still describe the beat as comparable to covering the College of Cardinals in Rome or the Kremlin in Moscow, pre- glasnost .” If he wanted to take readers beyond the current standard limits, Savage had no choice but to use some sources not willing to be named.

Savage offers no explanation about his method of reporting and no guidance about how he assessed the reliability and biases of unnamed sources. I wish he had. Instead, he relies on the credibility of his voice as a reporter, the weight of accumulated detail and the balance he shows in summarizing the record of the Court and in trying to fit Court decisions into a larger picture, to persuade readers that we should trust his use of unattributed, insider stuff. While readers must preserve some skepticism when this kind of detail is incorporated so heavily, I find that I do trust him.

The backstage material is integral from the beginning of the book, where Savage presents a sharply negative picture of former Chief Justice Warren Burger. While he “looked as though he had been cast by Hollywood for the part of chief justice,” Savage writes, inside the Court he “had not fared as well. He had been long winded and ponderous, to the irritation of his colleagues. His pompous manner offended them; he could be spiteful and petty to those who disagreed with him.” William Rehnquist, by contrast, “made an instant hit” when he became chief. In conferences to discuss cases, for example, “He absolutely hated to waste time. In his view, meetings should start on time and end early. Rehnquist moved through the cases briskly.”

Such often-heard accounts, which pose no threat to the collegiality of the current Court, are accompanied by more pointed tales about the justices. One set of examples is about Antonin Scalia, the most forceful character in “Turning Right.” Savage sees him, as some others do, as “brilliant, intense, hard-working, and passionately devoted to the law.” Savage says of Scalia in the 1986-1987 term: “For Scalia, the law was an intellectual exercise, requiring him to figure out what the words meant or how conflicting provisions should be reconciled. A sense of justice had almost nothing to do with it. He was surprised that the old liberals such as (William) Brennan and (Harry) Blackmun still talked of being deeply troubled over cases.”

Savage reports “Rehnquist cast a frown on anyone who talked too much” at conferences among the nine justices, and the “frowns were often directed at Scalia.” He writes that John Paul Stevens, “who sat next to Scalia on the bench, admired his young colleague’s intelligence and spunk but thought the Boyle opinion (explaining a decision that shielded government contractors from liability for defective products) was one of Scalia’s poorest efforts. Scalia had heaped scorn on the liberals for supposedly making up laws or legal doctrines to rule for minorities or for the poor. Now, Scalia had made up a legal doctrine to protect huge military contractors.”

Savage writes that Scalia “had trouble containing his irritation with Sandra O’Connor. ‘She’s a politician,’ he told friends. Though both were conservative and had a friendly relationship, Scalia and O’Connor approached the job differently. . . . He sought decisions that were intellectually consistent; she tried to be fair.”

Savage reports apparently personal thoughts of each justice. (Clarence Thomas’ part in “Turning Right” is limited to the fight over his confirmation.) Often, the details are interesting but innocuous, as with vignettes about the nominations of Anthony Kennedy and David Souter, which appear to come from the justices themselves. Sometimes, from justices or clerks, they underscore the highly personal, unpredictable nature of decision-making at the Court. Although they include no blockbusters, they still deliver a sting.

Savage seems reluctant to waste any piquant facts from his reporting, so “Turning Right” is sometimes so jam-packed with details that the drama of the book is diluted. It includes some asides about peripheral subjects that are clearly wrong. For example, Savage says “many” onetime solicitors general have moved on to the Supreme Court, when the number is four out of 38. Also, while the author’s portraits of each justice include well-rounded summaries of commendable and unsettling attributes of each, the portraits can’t shake their faceless quality.

Savage slips in a disclaimer about the disagreements he recounts (“In private conversation, the justices repeatedly emphasized the general good feeling among the nine members of the Court, regardless of their legal disputes. Yes, we disagree, they say, but we remain friends, or at least friendly colleagues”). Still, the overriding effect of his juicier items is to emphasize the battle lines of the near future for the Court. Unlike the days when the Court had true liberals, like William Brennan and Thurgood Marshall, and the lines of contention were bold, the ones for the Rehnquist Court will be about the nature of legal conservatism, and harder for most non-lawyers to grasp. Savage helps delineate them.

But is it a Rehnquist Court that has been made? Savage thinks so. By the end of the 1988-1989 term, he writes, Rehnquist had “taken firm control of the Court. He was unquestionably its dominant member and probably the most powerful figure in American law since Earl Warren retired in 1969.” (The onetime California governor preceded Warren Burger as chief justice.) The congruence between the conservative decisions of the Court under Rehnquist’s stewardship (its sharp curtailment of challenges to death sentences and of the doctrine of habeas corpus allowing state prisoners to appeal in federal court) and what clerks described to Savage as Rehnquist’s “simple and political view of the Court” supports Savage’s view.

On the other hand, differences of opinion that “Turning Right” lays out--for example, between the judicious O’Connor’s quest for a new middle ground on issues like abortion, affirmative action and the role of religion in American public life, and the potent Scalia’s search for the “right answer,” which led him to take “a small case” and use it “to sweep aside nearly thirty years of precedent” that had protected the free exercise of religion by followers of non-mainstream faiths--suggest that a deeper character for the current Court has yet to be defined. If so, O’Connor and Scalia could shape it as much as Rehnquist.

Some commentators distinguish between the intellectual leader of the Court and the chief justice, as administrator and honorary head. The late Justice Potter Stewart said that the chief justice has been the leader of the Court only twice in American history, when the post was filled by John Marshall (1801-1835) and Charles Evans Hughes (1930-1941). Many students of the Court believe that William Brennan, whom Savage calls “one of the truly great justices of the twentieth century,” was the real leader of the Court when Earl Warren was chief.

William Rehnquist may have been “the justice who most represented the judicial views of the Reagan Administration,” as former Reagan official William Bradford Reynolds told Savage, to explain why he was elevated to chief justice, but it is another thing for him to succeed in “massing” the Court behind him, and in creating a true “Rehnquist Court.” (Legal scholars use the term massing to describe the act of leading the justices to enact a legal vision.) While Savage generously depicts Rehnquist as having the strengths of intellect, personality, legal competence and expression to lead the Court in this way, he has not shown that Rehnquist’s views so dominate and persuade his colleagues that he, like Marshall and Hughes, has become both intellectual and administrative chief.

Early in “Turning Right,” Savage calls the Court “a committee of unelected lawyers.” This loaded phrase is popular among some conservatives and is invoked in the argument that the Court, as a non-majoritarian institution, should have a greatly reduced role in American life. (Savage’s use of the phrase seems unwitting of its baggage.) The argument has long had powerful proponents, including conservatives on the Court, but a Supreme Court committed to cutting back its role must also redefine its function in American governance and express that view in a coherent set of cogent decisions. The fact that the current Court hasn’t done either reinforces my doubts that there is yet a Rehnquist Court.

The right turn of the Supreme Court over the past five years has been acute, but it’s only a step toward the well-articulated reversal in direction that some want it to make. Three seats on the Court are occupied by senior justices (Blackmun, Stevens and Byron White) who aren’t reliably counted in the Reagan-Bush majority, and one or more is likely to have a successor named by whoever is President next year. If it’s Bush, he could fulfill his party’s pledge, as Roosevelt and Harry Truman did, and bring on a judicial revolution. If it’s Bill Clinton, the Court will have a very different balance--and who knows about Ross Perot. American voters still have a large say in whether our highest court unquestionably becomes the Rehnquist Court.