Judiciary : Mixed Record Marks 10 Years of Rehnquist Supreme Court

When Chief Justice Warren Burger told President Reagan in 1986 that he planned to retire from the Supreme Court, he handed Reagan’s aides exactly the opening they had hoped for.

Reagan’s agenda on abortion, school prayer and affirmative action was blocked in Congress, and Burger’s resignation gave the White House a chance to break what they saw as the liberals’ lock on constitutional law.

So 10 years ago this week, Reagan walked into the White House press room at midday to announce a profound shake-up of the Supreme Court, a switch that had been engineered secretly by a few of his top legal advisors.

In a judicial version of baseball’s double steal, Reagan moved up staunch conservative William H. Rehnquist to chief justice and selected conservative legal star Antonin Scalia to fill his seat.

In a decade together on the bench, Rehnquist and Scalia have lived up to their billing: a dream team for conservatives and a nightmare for liberals. However, the Rehnquist court has compiled a mixed record.

On the key issues of dispute--crime, abortion, religion and civil rights--the court has indeed shifted to the right. But the landmark rulings of the court’s liberal era still stand: the Roe vs. Wade decision on abortion rights, the Miranda ruling requiring warnings by police and the public school prayer ban from the early 1960s.

Moreover, the high court recently dealt two blows to conservative causes. Last year the court struck down term limits for members of Congress, and this year it invalidated a Colorado voter initiative that barred gays and lesbians from winning legal protections against bias.

Court scholars are divided over how to assess the Rehnquist court. Some see a continuation of a gradual, 25-year move away from the liberal activism of the Earl Warren court. Others see Rehnquist leading a hard move to the right, with an activist conservative court fueling an assault on civil rights and individual liberties.

Stanford University law professor Kathleen Sullivan is in the first camp. “I think what’s most remarkable is what hasn’t happened. It’s the counterrevolution that wasn’t.”

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Court historian Bernard Schwartz and USC law professor Erwin Chemerinsky put themselves in the second camp.

Rehnquist “has been on a mission to undo the work of the Warren court, and I think he has accomplished a great deal from his point of view,” said Schwartz, who is now teaching at the University of Tulsa.

“We tend to be deceived by what didn’t happen,” Chemerinsky added. “Overall, there has been a dramatic move to the right. Look at school desegregation, prisoners’ rights, voting rights, habeas corpus, religion, equal protection. There have been important changes across the board.”

The right to abortion survived on a 5-4 vote in 1992, and term limits were struck down by the same margin last year.

Those close votes suggest that a miscalculation 10 years ago may have cost Reagan and his aides a chance to create a solidly conservative court. The question then was whether to nominate Judge Robert H. Bork, a prominent conservative, or the younger, lesser-known Scalia.

“We settled pretty quickly on Rehnquist as the new chief, but there was a spirited debate over Bork and Scalia,” recalled Peter Wallison, then-White House counsel.

None of the three candidates was a friend of Reagan’s. But Reagan had made clear what kind of person he sought for the Supreme Court.

“He wanted people whose judicial philosophy was known and could be relied upon,” Wallison said. That meant veteran judges, not politicians.

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Atty. Gen. Edwin Meese III and his top advisors favored the less-controversial Scalia. Other aides thought Bork might be the better choice. The Republicans had control of the Senate in 1986 and would approve either nomination. Scalia could come later, they said.

In the end, Reagan made the choice but on a somewhat different basis. “When the president learned Nino Scalia would be the first Italian American justice, it was over,” Wallison recalled.

Scalia got the nomination, charmed the Senate Judiciary Committee and won a unanimous confirmation.

A year later, it was a different story when Justice Lewis F. Powell Jr. retired and Reagan picked Bork to replace him. In the Senate, the bearded, stern-faced judge encountered hostile questioning about his writings. The political climate had changed too, since the Democrats had retaken control of the Senate and the Reagan White House was mired in the Iran-Contra affair.

When Bork’s nomination went down in flames, Reagan settled for a moderate, Anthony M. Kennedy from Sacramento. Kennedy in turn has cast the deciding votes to preserve Roe vs. Wade, to maintain the strict ban on prayer in schools and to invalidate term limits--all instances where Bork almost surely would have voted the opposite way.

“Hindsight is always wonderfully sharp,” said University of Notre Dame law professor Douglas Kmiec, who was then a top aide to Meese. “We didn’t know then what we know now. We had one appointment to make [in 1986], and I think it was the right decision.”

Rehnquist has won high marks as chief justice. Even the liberal justices who invariably disagreed with him--including William J. Brennan and the late Thurgood Marshall--praised him as a superb chief justice and a good friend.

Unlike Burger, Rehnquist has a clear and consistent legal philosophy. He believes the Constitution left nearly all power in the hands of the people and their elected representatives.

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Despite his strong views, Rehnquist seems unperturbed when his colleagues disagree. “He never holds a grudge,” one justice commented.

On a personal level, Rehnquist remains amiable and modest. He laughs easily, including at himself.

When asked about his authority as chief justice, he commented that his colleagues “defer not in the slightest on matters of law.” But “if there’s a problem in the parking garage or the temperature is set uncomfortably in the conference room, they are quick to invoke my authority.”

On many a day, he strolls alone around the court building to loosen his perpetually sore back. But he appears to expect no special deference. For example, on a day when a dozen visitors slowly shuffled through a metal detector at the court’s side entrance, the chief justice patiently waited his turn to enter the building.

In late September, he underwent back surgery. Since then, some have speculated that he would retire shortly, perhaps giving President Clinton, if he is reelected, a chance to tip the court back toward the left.

But Rehnquist said his back is feeling better and, at age 71, he has no plans to retire soon.

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A Decade of Decisions

Here are key actions coming from the 10-year-old Rehnquist court:

* ABORTION: Gave the states authority to restrict abortion, especially for minors. This marked a clear change from 1986, when the court struck down all of Pennsylvania’s restrictions. In 1992, the court upheld those same Pennsylvania restrictions but announced it would stand behind the basic right of women to choose abortion.

* DEATH PENALTY: Cleared away most legal obstacles to executions. By a 5-4 vote in 1987, it rejected a claim that the death penalty was racially biased. It also allowed death sentences for mentally retarded and juvenile murderers, and cut off extended appeals by Death Row inmates.

* RELIGION: Replaced strict separation of church and state with more acceptance of religion in public life. Last year, the justices said state officials must allow a cross to stand in a park near a state capitol and ruled a state university must fund a Christian students’ magazine on the same basis as other publications. But the court has drawn a line at school-sponsored prayers.

* AFFIRMATIVE ACTION: Imposed new restrictions on affirmative action by the government but left

private businesses free to give an advantage to minorities and women. In 1989, the court outlawed “racial classifications” by state and local agencies, including programs that steer city contracts to minority-owned firms. The court has extended that rule to cover federal government.

* VOTING RIGHTS: Changed direction in 1993 and, on a 5-4 vote, said electoral districts cannot be drawn strictly along racial lines.

* STATES’ RIGHTS: Put new restrictions on Congress and gave more power to the states. For first time since 1936, the court struck down a federal law on the grounds that Congress did not have the authority to pass it. Congress can regulate matters involving interstate commerce, Rehnquist said, but not handgun possession near a school.

* SEARCH AND SEIZURE: Upheld drug testing of government workers and schoolchildren.

* FREE SPEECH: Struck down laws that infringed on free expression, ranging from flag burning to the advertising of beer prices and crude satires in Hustler magazine.

Source: Times Washington Bureau