Justice In Absentia

Once in the forefront of national controversies, the U.S. Supreme Court, under Chief Justice William H. Rehnquist, is retreating from the political landscape. As it increasingly evades disputes desperately in need of resolution, the court has become remote, content to let conflicts play out without definitive judicial resolution. Whether measured in terms of major controversies avoided, conflicts left unresolved or the steep decline in the number of decisions handed down, the trend is unmistakable.

The outlook at the court has clearly changed. No longer eager to address pressing social issues, the Supreme Court is both more conservative and less bothered about ensuring stability in the law and its equal application. This, in part, reflects the chief justice’s philosophy of federalism and interest in leaving matters to the states. Another important factor is that every justice appointed in the last 25 years has come from a lower federal or state court and has little experience in national public affairs. Gone is a vision of the Supreme Court as a guardian of civil rights and liberties, ready to play a leading role in resolving heated social conflicts. In addition, as more work is delegated to law clerks, the justices themselves are less involved in screening cases, distancing them intellectually from the problems and people represented by appeals. In short, an aloof, conservative and bureaucratic judicial mind-set now predominates.

For example, this month the court declined to review a Louisiana court ruling allowing a victim’s family to sue filmmaker Oliver Stone, producers and others on the ground that their movie “Natural Born Killers” inspired a 1995 crime spree. Last year, it let stand a federal-court decision permitting the relatives of a murder victim to sue the publisher of “Hit Man,” an instruction manual used by a gunman in the killing. These decisions depart significantly from established First Amendment law protecting free speech and the press. The court’s lack of action leaves artists, writers, publishers and movie producers and distributors at great risk of costly lawsuits and self-censorship.

Notably, other major controversies are being ducked as well. Ever since its bitterly divided 5-4 ruling on abortion in 1992, in Casey vs. Planned Parenthood of Southeastern Pennsylvania, that issue has been avoided. Yet, after Casey, numerous states enacted laws banning late-term abortions, which, in turn, were struck down by lower federal courts. The Supreme Court, nonetheless, refuses to review them and provide guidance.

Similarly, the controversy over affirmative action in higher education has been dodged. Though a bare majority struck down federal and state affirmative-action programs in employment in the early 1990s, the court has since refused appeals of decisions invalidating such programs in education. Those decisions directly contradict the precedent set in Regents of the University of California vs. Bakke (1978), upholding some programs promoting diverse student bodies. Perhaps the court’s conservative majority is simply willing to let lower courts disregard (effectively overruling) that and other liberal precedents because it no longer deems them good law. And it doesn’t bother saying so because it thereby avoids doing battle with the four more liberal justices and making headlines. If so, that radically departs from the court’s traditional responsibility to clarify the law.

In any event, the court’s diminished role is underscored by how few cases are granted review in spite of their increasing number. During this term, only about 75 cases will be granted, chosen from the almost 8,000 appeals. The retrenchment is striking in historical perspective. One has to go back to 1953, the first year of Chief Justice Earl Warren’s tenure, for so few decisions. Still, the 76 decisions handed down that year amounted to 5% of a far smaller docket of 1,463 cases. By comparison, in the early 1980s, under Chief Justice Warren E. Burger, the court faced dockets of roughly 5,000 cases and annually decided more than 3%--between 170 and 180 cases. The Rehnquist court grants less than 1% of its larger docket, leaving the overwhelming majority of lower-court rulings undisturbed. In sum, the court appears unconcerned about overseeing the federal judiciary and ensuring the stability and equal protection of the law.

What’s happening is the result of changes in the court’s makeup and how it operates. Since all the current justices were elevated from the federal or state bench--except Rehnquist, who was an assistant attorney general under Nixon--the court has become insulated, removed from how legal conflicts affect people’s lives. No member of the court possesses the breadth of experience and concerns of, for example, Warren, who had served as governor of California and was the GOP’s vice-presidential candidate in 1948; or Justice Hugo L. Black, who had been a senator; or Justice Thurgood Marshall, the crusading NAACP lawyer who helped spearhead the civil-rights movement.

The justices’ view of their role has changed profoundly. In speeches, they regularly stress that they should not be expected to do justice in individual cases. Besides largely abandoning their historic role of correcting errors and injustices, they tolerate conflicting rulings among federal circuit courts of appeals. Whereas resolving intercircuit conflicts among the 13 appellate courts preoccupied the Burger court, those conflicts now “percolate.” The justices figure that future terms will bring similar cases that can always be granted. Therefore, they evade and delay, granting review only when a “deep conflict” arises among several circuit courts. Almost forgotten are the individuals appealing to the highest court in the land.

The court’s new attitude is reinforced by its greater dependence on law clerks to screen cases. Until the 1970s, all nine justices reviewed petitions in paid cases; the chief justice’s chambers had responsibility for filings from indigents and circulated to the other justices copies of those raising important issues. A majority of the Burger court found the workload burdensome, however, and decided to pool its clerks and have them write a single memo on each case, recommending whether or not to grant review. At the time, the four most senior and liberal justices refused to join and continued individually reviewing cases. But, with retirements and with each new justice joining the pool, only Justice John Paul Stevens remains out of pool. Consequently, eight justices share the same memos on each case and, thus, cases receive far less independent review; the petitions and briefs in the vast majority of cases are never even looked at by the justices.

The problems with the law-clerk pool go beyond the court’s increasing bureaucracy. The limited experience of young law clerks, who serve only one year, compounds the problems. To highlight the greater influence that clerks in the 1990s exercise than when he clerked in the 1940s, Stevens recently emphasized that their lack of experience makes them “risk averse” when recommending what to decide, and that contributes to “the lessening of the docket.”

Ultimately, the court’s diminished role in American society reflects the interplay of how life within the marble temple has radically changed. Ideologically, the chief justice commands a bare majority unwilling to tackle major social issues. He and other conservative justices have long opposed “liberal judicial activism” and championed a reduced role for the court.

No less crucially, none of the current justices share their predecessors’ vision of the Supreme Court as a leader in reaching out to protect the poor and minorities and to resolve complex social problems. Their dependence on law clerks in screening cases has, to some extent, also removed them from the urgency of the problems coming to the court. Justices have become casual about their declining supervisory power and role in promoting the certainty, stability and equal application of the law.

Make no mistake, these changes diminish the Supreme Court’s historical role in the life of American politics and will stand as the major legacy of the Rehnquist years.