Kennedy Emerges as Key to Court’s Moderate Bloc : Judiciary: Once a strong Rehnquist ally, he has joined with O’Connor and Souter to form a middle camp.

It was an unusual scene. One morning in late May, an hour before the Supreme Court convened, Chief Justice William H. Rehnquist and Justice Anthony M. Kennedy were strolling around the court building locked in argument. As they walked, Kennedy was gesturing with his hands as Rehnquist frowned.

What could these two have had to argue about? Kennedy has been the chief justice’s most steady ally.

During the last week, the answer became clear. In two stunning decisions, Kennedy bolted from the conservative camp led by Rehnquist and allied himself with Justices Sandra Day O’Connor and David H. Souter to build court majorities for startling decisions on such emotion-charged issues as school prayer and abortion.

In the process, Kennedy has helped build a new bloc within the court that could turn it in unexpected directions in the years ahead. Where the ultraconservatism of Rehnquist and Justice Antonin Scalia had seemed certain to dominate future decisions on major policy questions, it now appears that Kennedy, O’Connor and Souter may exert a significant moderating influence.

“He has moved in a thoughtful and moderate direction. And with Justices O’Connor and Souter, they have formed a moderate bloc that can control the court,” said Harvard law professor Laurence H. Tribe. The hallmarks of the moderate coalition appear to be caution and respect for precedent, not the ideological conservatism practiced by Rehnquist and Scalia.

These three justices are far from liberal. They do not even fit easily under the old “moderate” label. And Souter’s views, in particular, remain unknown on a great many subjects.

Still, it is already clear that justices who used to be counted as solidly predictable members of the Rehnquist camp are no longer prepared to follow wherever the chief justice may choose to lead.

In recent years, Rehnquist and the fiery Scalia had pushed the court ever further to the right. With the arrival of Justice Clarence Thomas, the chief justice apparently believed that he had a majority this year that would sharply undercut the separation-of-church-and-state doctrine and overrule the Roe vs. Wade ruling that made abortion legal.

But the push from the right apparently proved to be too hard for Kennedy, the mild-mannered native of Sacramento, and for Souter, the quiet former state Supreme Court justice from New Hampshire. As for O’Connor, the only woman ever to serve on the court, she had already signaled that she would not always follow Rehnquist’s lead.

And when Kennedy, Souter and O’Connor sided with Justices Harry Blackmun and John Paul Stevens on the church-state issue, they created a five-member majority, ruling that even a brief religious invocation at a junior high school ceremony went too far.

The same three created a new majority to solidly reaffirm the principle that a woman has a right to make the “ultimate decision” on ending her pregnancy. For Kennedy, the abortion vote represented an apparent switch from an earlier position in which he had seemed to support Rehnquist.

At this time last year, retiring Justice Thurgood Marshall was predicting that the Rehnquist Court would dramatically reverse precedents on abortion, school prayer, affirmative action and criminal law. Suddenly, those predictions sound exaggerated or flatly wrong.

As Souter said from the bench Monday, the court’s reputation is dependent on its resistance to the winds of “public pressure.”

“Like the character of an individual, the legitimacy of the court must be earned over time,” Souter said, and that legitimacy could be “undermined” if precedents are simply tossed aside.

During his 1990 confirmation hearings, Souter stressed his belief in precedent and his supporters called him a “non-ideological” judge. During her 11 years on the court, O’Connor has established a record as a moderate conservative. She has refused repeatedly to go along with moves to outlaw affirmative action, reverse the abortion right or permit official school prayer.

But virtually no one predicted that Kennedy would abandon Rehnquist this year to join the middle camp on the court.

In 1988, when Kennedy joined the court as Ronald Reagan’s third appointee, he quickly lined up with the Rehnquist majority to cut back on civil rights laws in a series of 5-4 decisions.

On abortion, he joined a Rehnquist opinion in 1989 that would have given the states a free hand to outlaw abortion and he wrote that the laws must show respect for the “other human life that lies within the embryo.” Last year, he joined Rehnquist’s 5-4 ruling upholding the so-called “gag rule” that prohibited counselors at federally funded family planning clinics from discussing abortion.

But his decisions of the last week have shocked conservatives and given liberals a new optimism about the court.

Scholars who follow the court suggested that the radical brand of conservatism practiced by Scalia and Rehnquist may have driven Kennedy away.

“He is clearly the biggest surprise of the term and I think it could be a reaction to Scalia,” said George Washington University professor Mary Cheh. In vitriolic dissents, Scalia has slammed O’Connor’s views as “irrational” and “not to be taken seriously,” while he recently denounced a Kennedy opinion as a “jurisprudential disaster.”

“If anyone could push someone toward moderation, it is an intemperate extremist. And that’s Scalia,” Tribe said. “He regularly dismisses their views (O’Connor’s and Kennedy’s) as banal and outrageous.”

To be sure, there have been hints all along that Kennedy would emerge as a more moderate figure. In his first years on the court, he distanced himself from several of Scalia’s sweeping opinions. Kennedy also sounded reluctant in joining some conservative majorities.

In all manner of disputes, Kennedy has appeared to view himself as a case-by-case judge, rather than an ideologue.

“It’s easier to be Rehnquist or a Scalia than a Kennedy,” he once commented in an interview in his chambers.

Abortion clearly has not been an easy issue for him. As a conservative judge and a Catholic, he told law clerks years ago that he found abortion troubling and the Roe ruling questionable as a matter of constitutional law.

In the 1989 Webster case, Kennedy sounded genuinely torn as Reagan Administration lawyers urged that Roe vs. Wade be reversed. He questioned them about the privacy right but eventually signed on to Rehnquist’s opinion, saying that abortion was not the “fundamental right” that Blackmun had called it in his 1973 opinion.

This month, new arrival Thomas was ready to supply a fifth vote for that view.

Except that Justice Kennedy would not go along.

ABORTION MEASURE: House Judiciary Committee approves a bill that would forbid state abortion restrictions. A15