06-10-2000

JUDICIARY: The Tipping Point

Justice Antonin Scalia's demeanor was charming, his delivery witty. But
his message was serious, and some of his words were blunt. Scalia's
subject at an April 18 symposium hosted by Michigan State University in a
Washington hotel was "judicial activism." The 64-year-old Reagan
appointee's main targets were "the liberal [Supreme] Court of the
`60s and `70s"-which he said sometimes used "phony and
disreputable" reasoning to distort the meaning of


laws-and the U.S. Congress of more recent years, which he accused of
"legislative activism." And his conclusions went to the
fundament of our constitutional system.


Countering academic critics who have turned the old imprecation of
activism against Scalia and his conservative colleagues, Scalia said that
"the current Court is considerably less activist ... than the Court
of a few decades ago." He acknowledged that "conservatives are
just as willing to play this game as liberals are now," and that
"we are striking down as many federal statutes from year to year as
the Warren Court at its peak." But he noted that the Court has been
voiding fewer state and local statutes than it did in previous decades.
And he stressed that most federal and state laws that have fallen lately
have "involved attempts by a legislature to do something quite novel
and often even downright bizarre." He lingered on
"bizarre."


As one example Scalia (a devout Catholic) cited Congress's Religious
Freedom Restoration Act of 1993, which sought to force the Court to
require governments to provide more accommodations to religion than the
Justices (in a 1990 opinion by Scalia) had found required by the First
Amendment's guarantee of freedom of religion. This act was, Scalia said,
the only statute he had ever seen in which Congress had "purported to
direct the Supreme Court to interpret the Constitution in a certain
way." The Court struck that law down in 1997 in a 6-3 vote. Scalia
blasted another law as a "congressional search for some patsy to pay
the welfare benefits that it was unwilling to appropriate out of public
funds." That one, which the Court struck down 5-4 in 1998, was a 1992
statute retroactively assessing companies that had left the coal business
as long ago as 1965 for the cost of health benefits for miners, their
widows, and children. And he assailed a provision of the Communications
Decency Act that had effectively barred Internet transmission of sexually
explicit materials protected by the First Amendment. The Court voided that
law unanimously in 1997. Laws such as these are so clearly
unconstitutional, Scalia suggested, that judicial decisions striking them
down are "more an indication of legislative activism than of judicial
activism."


"Congress is increasingly abdicating its independent responsibility
to be sure that it is being faithful to the Constitution," Scalia
asserted. "My Court is fond of saying that acts of Congress come to
the Court with the presumption of constitutionality.... But if Congress is
going to take the attitude that it will do anything it can get away with
and let the Supreme Court worry about the Constitution ... then perhaps
that presumption is unwarranted."


In the works at the time, as Scalia knew, was a 5-4 decision in which he
and his fellow conservatives had voted to strike down part of the Violence
Against Women Act of 1994, which had swept through Congress by wide
bipartisan majorities, as an invasion of the traditional domain of the
states. When that decision (U.S. vs. Morrison) came down on May 15, Chief
Justice William H. Rehnquist's majority opinion gave lip service to the
familiar "presumption of constitutionality." But the Court's
bold action-lopping off a provision that had authorized victims of rape,
domestic violence, and other "crimes of violence motivated by
gender" to file federal civil rights lawsuits against their suspected
assailants-spoke louder than Rehnquist's typically bland words.


It was only the second decision since 1935 holding that some crimes and
other matters are so clearly noncommercial and so clearly within the
domain of the states that Congress lacks the power to punish them by
invoking its power to protect interstate commerce. It was also the 22nd
congressional enactment that the Rehnquist Court has struck down in the
past five years-a near-record pace. The 23rd came a week later, when a 5-4
majority invoked the First Amendment to void a law that had effectively
required many cable television systems to limit sexually explicit
programming to late-night hours. The Court will resolve challenges to
several more acts of Congress in the next two or three weeks.


Justice David Souter warned in his opinion for the dissenters in Morrison
that by intruding into Congress's domain, the majority had taken what
"can only be seen as a step toward recapturing the prior
mistakes" that had "in large measure provoked the judicial
crisis of 1937." The Bush-appointed Souter, who has proved to be
fairly liberal, was alluding to the long-discredited line of Supreme Court
decisions striking down a succession of federal regulatory laws passed
before and during the New Deal. These decisions inspired President
Franklin D. Roosevelt's court-packing plan of 1937, which in turn helped
prompt the Court to back down. For the next 55 years, it virtually
abandoned any pretense of curbing the reach of congressional power, while
gradually expanding its protection of civil liberties, especially in cases
pitting individuals against states. Joseph R. Biden Jr., D-Del., the main
Senate sponsor of the Violence Against Women Act, was more blunt than
Souter in his criticism of Morrison in an interview with The Los Angeles
Times: "These folks are judicial activists."


Perhaps so. But the same can be (and has been) said of the Court's four
liberals, who see the Constitution as a tool to push for social reform.
The activist label is apt for all nine Justices to the extent that
judicial activism includes invoking novel or debatable interpretations of
the Constitution to strike down democratically adopted state or federal
laws and practices that offend one's moral or political beliefs, while
showing relatively little deference to the other branches of government
and the voters. Among the cases in which the Court's liberals (joined by
one or both of the centrist conservatives, Sandra Day O'Connor and Anthony
M. Kennedy) have done this are a 1999 decision striking down state and
federal laws limiting new residents of California to the welfare benefits
they would have received in their home states; another voiding a Chicago
ordinance that gave police broad powers of arrest to sweep suspected gang
members and those who associate with them from neighborhood streets; two
1996 decisions expanding gay rights and casting a shadow of doubt over the
constitutionality of all single-sex education; a 1995 decision sweeping
away all laws limiting the terms of members of Congress; and a 1992
decision barring public schools from sponsoring prayers (even
nonsectarian, nondenominational ones) at public school
graduations.


One paradox behind all the finger-pointing about judicial activism is that
the Supreme Court-nine unelected, life-tenured, black-robed lawyers who
keep striking down popular laws adopted by the people's elected
representatives-has always fared far better than Congress and
substantially better than the executive branch in polls measuring public
confidence in the three branches ever since such polls began in 1966. And
the gap has been widening in recent years.


The recent go-rounds in the Justices' battle over the direction of
American law came during the run-up to a presidential election that may
well-should one or more Justices retire-have a dramatic impact on the
Court's ideological balance, perhaps for decades to come. Even a single
strategic appointment (a liberal replacing a conservative or vice versa)
could tip the Court decisively to the liberal or conservative side on
issues such as affirmative action, racial gerrymandering, public aid
(including vouchers) for religious schools and their students, and the
battle over federalism-based curbs on congressional power that has
produced identical 5-4 splits in Morrison and nine other decisions since
1992.


By the end of June, the Justices are expected to underscore how large a
role they play in governing the nation, and how big the stakes in this
election could be, by issuing decisions on a bunch of major issues:
whether to strike down some or all of the 30 state laws banning
"partial-birth" abortion; whether the Boy Scouts of America must
admit gay members and scoutmasters; whether the Constitution bars
student-led prayers at high school football games; whether to strike down
California's open primary system; whether to overturn the Warren Court's
most famous precedent, the 1966 decision in Miranda vs. Arizona; and
more.


Already this year O'Connor and Kennedy have teamed with the Court's three
most conservative members-Rehnquist, Scalia, and Clarence Thomas-in 5-4
decisions barring Congress from subjecting state governments to the
federal law that bars discrimination against older employees; voiding the
Clinton Administration's efforts to regulate tobacco; making it harder for
the Justice Department to require that election districts be redrawn to
help elect black and Hispanic candidates; making it easier for police to
stop and frisk people who flee when approached; and voiding the Violence
Against Women Act. Liberal-leaning John Paul Stevens, Souter, Ruth Bader
Ginsburg, and Stephen G. Breyer (the latter two are Clinton appointees)
have dissented from all these decisions. The same was true of, for
example, the Court's 1997 decisions striking down a portion of the Brady
gun control act and overruling a 1985 precedent that had barred public
school teachers from teaching federally financed remedial classes at
religious schools, and its 1995 decision curbing federal affirmative
action preferences.


Two June 5 decisions, on the other hand, illustrate how simplistic it is
to see the Justices solely as two undifferentiated ideological blocs. In
the first case, an eclectic majority-O'Connor, Rehnquist, Ginsburg,
Breyer, Souter, and Thomas-held that a Washington state law took too
little account of the constitutional rights of parents in permitting a
judge to order visiting rights for grandparents over a mother's objection,
while splintering as to the constitutional rationale; Stevens, Scalia, and
Kennedy dissented for very diverse reasons. In the second case, an 8-1
majority (with only Rehnquist dissenting) ruled that Kenneth W. Starr,
then the Whitewater independent counsel, had violated a plea agreement
with Webster L. Hubbell by indicting him for tax evasion on the basis of
thousands of pages of personal financial records Hubbell had produced
under a grant of immunity.


For its next term, which begins in October, the Court has already
scheduled a major test of the sweeping, open-ended powers that Congress
has for decades delegated to agencies such as the Environmental Protection
Agency under various regulatory laws. One issue in that case (American
Trucking Associations vs. Browner) is whether to reinterpret the Clean Air
Act to require the government to weigh the economic costs against the
public health benefits of proposed regulations mandating reductions in air
pollution. In another case (University of Alabama vs. Garrett), the Court
will consider whether states are constitutionally immune from suit under
the Americans With Disabilities Act. In a third (Solid Waste Agency vs.
U.S. Army Corps of Engineers), the issue is whether to curb federal power
over matters such as a local government's plan to fill (for use as a
waste-disposal site) an isolated intrastate wetland that could provide
habitat for migratory birds. These are big, important issues.


And in the next few years, the Court is likely to decide the fate of the
thousands of federal, state, and local race and gender preferences and
racial gerrymanders of election districts. Despite a succession of 5-4
decisions curbing (but not flatly barring) use of such racial
classifications, many such programs have survived the cautiously worded
majority opinions and concurrences of the often-ambivalent O'Connor. Also
in the pipeline are cases in which the Justices will be asked to rule on
tuition vouchers for religious schools, various campaign finance
restrictions, gay rights issues, the parameters of "right to
die," privacy, crime, freedom of speech, property rights, and
more-and on now-unforeseen issues that will become important as technology
races ahead.


What the Election Could Do


The outcomes of many such future cases will probably depend on who
appoints the Court's next one, two, or three members. Any or all of the
three oldest Justices-Stevens (80), Rehnquist (75), and O'Connor
(70)-might well retire in the next four to eight years. It's also possible
that others will step down. If Al Gore wins the election and Rehnquist or
O'Connor retires, or if George W. Bush wins and Stevens or O'Connor
retires, the new President would be presented with an opportunity to
engineer the kind of sharp shift in the Court's balance that President
Reagan attempted in 1987 when he nominated then-Judge Robert H. Bork to
replace the moderate Lewis F. Powell Jr.


A one-vote swing to the liberal side would change the law most
dramatically. A liberal Gore appointee replacing a conservative could help
entrench race and gender preferences and abortion rights for decades to
come; doom tuition vouchers and other government aid to private and
religious schools; and join the four who have openly suggested that if
they get a fifth vote, they will deep-six Rehnquist's pet project: the
line of 5-4 federalism rulings since 1992 that have curbed the federal
government's powers to regulate either the states or matters traditionally
within their domain.


On the other had, a conservative Bush Justice replacing a liberal-or
O'Connor-could wipe out most or all preference programs maintained by
federal, state, and local governments; loosen restrictions on church-state
links, including aid to religious schools; and move the Court further down
the states' rights road. A one-vote swing to the conservative side might
also lead to approval of incremental restrictions on abortion procedures.
But President Clinton overstated the Bush threat to abortion rights when
he said at a Democratic fund-raiser in January: "There is absolutely
no question in my mind that whether Roe vs. Wade is preserved or scrapped
depends on what happens in the presidential vote." In fact, the basic
right to have an abortion seems a strong bet to survive a one-term Bush
presidency and a reasonably good bet to survive two terms. That's because
six of the current Justices-O'Connor, Kennedy, and the four
liberals-support Roe vs. Wade. It would fall only if two of these six were
to retire, if Bush were to nominate replacements bent on overruling Roe,
and if both were to survive what would most likely be Senate confirmation
battles of unparalleled ferocity.


A conservative nominee seen as a likely balance-tipping vote to junk Roe
would face an assault by Democrats at least as intense as the one that
ended in the 58-42 Senate vote rejecting Bork in 1987. And although the
Senate has since moved from Democratic to Republican control, it voted
51-47 in October to endorse Roe as "an important constitutional
right" that should not be overturned. Would Bush invite two
successive Bork-like brawls? Or might he turn instead to someone whose
views are less hard-edged or unknown? That's what Reagan did in appointing
the more moderate Kennedy after Bork went down, and what President Bush
did in choosing Souter, the so-called stealth nominee, in 1990; his votes
and opinions have appalled conservatives and delighted liberals ever
since. In all, two of the three Justices added by Reagan (Kennedy and
O'Connor) and one of the two added by Bush (Souter) voted in 1992 to
uphold Roe vs. Wade.


Other caveats are also in order when speculating about how a new President
might change the Court. One is that none of the Justices has signaled
plans to retire, and none seems too old or sick to stay until 2004. It's
conceivable that all nine will stay, even though actuarial tables and
aspirations for a life after the Court do suggest that one, two, or more
are likely to leave by then. Harry A. Blackmun and Hugo L. Black were 85
when they retired, William J. Brennan Jr. was 84, Thurgood Marshall was
83, and Oliver Wendell Holmes Jr. was 90. A second caveat is that Gore or
Bush might well give priority to considerations other than ideology; both,
for example, would like to name the first Hispanic Justice, which would
help court an increasingly important bloc of voters and would make a mark
in history. A third is that new Justices sometimes surprise, as Blackmun
did by moving from the conservative to the liberal side early in his 14
years on the Court, and that they sometimes adhere to precedents that they
would not have joined in the first place, as O'Connor did when she voted
in 1992 against overruling the "core holding" of Roe vs. Wade.
And a fourth is that veteran Justices sometimes move toward the center to
offset any attempts by newcomers to engineer sudden shifts in the
law.


The Supreme Court issue has not yet emerged as a major motivator for most
voters. But it is important to many. And Gore may have an edge in the
sense that polls suggest that a majority of the centrists who are up for
grabs would prefer a more liberal Court to a more conservative one, at
least on abortion. Accordingly, Democrats are seeking both to scare
abortion-rights moderates and to rally their base-especially racial
minorities and liberal feminists-by exploiting concerns about who will be
appointing the next few Justices. Gore, who has pledged to choose
supporters of abortion rights, frequently warns that Bush would fill any
vacancies with anti-abortion extremists pre-screened for their
acceptability to religious conservatives such as Pat Robertson and Jerry
Falwell. "Many of our personal liberties are at stake," he
declares. Liberal groups are pounding on the same theme by claiming that a
Bush Court would threaten "the right to privacy, reproductive choice,
civil rights, affirmative action, separation of church and state,
environmental protection, and worker and consumer rights," as People
for the American Way put it in a 79-page alarum on May 25.


For his part, Bush has said that Roe "usurped the right of
legislatures," and he has vowed to name "strict
constructionists" such as Scalia and Thomas. But the presumptive
Republican nominee has disavowed any anti-abortion "litmus test"
and downplayed any plan he may have to move the Court to the right-as his
conservative base would surely demand-on other issues such as affirmative
action.


Nine Judicial Activists


The Justices' eagerness to remain above (or at least outside) the world of
politics was one reason for their nine empty front-row seats at President
Clinton's final State of the Union address on Jan. 27. Some had medical
excuses or pressing family business, and others have skipped such speeches
for years. But this was the first time in memory that not one had showed
up, excepting 1986, when the speech was postponed because of the
disastrous explosion of the space shuttle Challenger. This year's absences
were not a gesture of disrespect for President Clinton, one Justice
explained privately. Rather, some of the Court's members have for years
felt uncomfortable sitting silent and immobile in their black robes at
what has increasingly become a made-for-television political show, with
Democrats applauding one line and Republicans the next as the President
makes a speech exuding thinly veiled partisanship.


But it's difficult to decide so many politically charged cases and to
strike down so many democratically adopted laws without being accused of
politically motivated judicial activism by someone. All nine members of
the current Court have been so labeled-sometimes by one another, as in
Stevens' dissent from the age discrimination ruling handed down on Jan.
11. Stevens accused the five conservatives of engaging in "judicial
activism" by substituting their will for that of Congress.


"Judicial activism" has long served as a campaign slogan for
Republicans railing against the Warren Court, the 1973 ruling in Roe vs.
Wade-which was seen at the time as a usurpation of legislative power even
by many liberal scholars-and many other decisions during the years after
Warren E. Burger succeeded Earl Warren as Chief Justice in 1969. Many of
these critics were more unhappy with the political results of the Court's
decisions than with its aggressive use of judicial power per se, and thus
have welcomed the conservative judicial activism of more recent
years.


Activism is contagious. It would take more self-restraint than most judges
have to watch their ideological adversaries pursue politically tinged
agendas without responding in kind. So it has become fashionable for
liberals in Congress (such as Biden), the media, and academia-many of whom
find judicial activism congenial when it produces results they like-to
join Stevens in turning the old charge of activism against the
conservatives themselves. Such charges have become a staple of liberal
professors and publications such as The New York Times, which blasted the
Court the day after Morrison for "weakening civil rights" in an
editorial headlined "Violence Against the Constitution." Some
moderates also assail Morrison as "an unwarranted interference by the
Court with ordinary democratic politics," as professor Larry Kramer
of New York University puts it. "The kind of role the Court is
creating for itself is one in which it sets itself up as the final arbiter
of how necessary or expedient federal legislation is, a kind of judgment
they have no business making for the rest of us," Kramer
adds.


While avoiding overt criticisms, Clinton-appointed Solicitor General Seth
P. Waxman stressed in a May 1 speech that "the extraordinary act of
one branch of government declaring that the other two branches have
violated the Constitution has become almost a commonplace." Recalling
"the New Deal's head-on collision with the Supreme Court in the
tumultuous `30s," Waxman noted that in the succeeding decades the
Court had "reiterated time and again that `the judicial power to hold
an act unconstitutional is an awesome responsibility calling for the
utmost circumspection in its exercise.' " The Justices struck down
only 128 federal laws during the Court's first two centuries, he observed;
the current Court has struck down 21 in the past five years. (Two more
have fallen since his speech.)


Some critics fault the Court's liberals and conservatives alike for
overextending their powers. One such critic is Jeffrey Rosen, a law
professor at George Washington University who also writes for The New
Republic and other magazines. Last June, he criticized as "judicial
legislation of the most sweeping kind" a 5-4 decision in which the
liberals (plus O'Connor) opened the way for students of all ages to bring
federal lawsuits against their schools for possible sexual harassment by
other students. In January, Rosen asserted that "the five
conservative Justices have ... turned themselves into the mirror image of
the judicial activists whom they have spent their careers attacking"
in their push to revive federalism-based limitations on congressional
power. "This Court is activist in all areas, across the board,"
adds Kramer.


But judicial activism "means many things to many people," as
Scalia noted in his April 18 speech. The phrase has become so protean in
its connotations as to be an all-purpose label for decisions one does not
like. Thus, some critics call it activism to depart from precedents, while
others call it activism to adhere to precedents that are clearly
inconsistent with the text or original meaning of the Constitution. In
abortion-rights cases, therefore, the charge is hurled both at the
Justices who would overrule Roe vs. Wade and at those who seek to preserve
it.


Definitions of unwarranted judicial activism tend to fit the patterns of
results that are politically congenial to the person doing the defining.
Scalia, for example, defines judicial activism as including
"decisions that hold unconstitutional practices that were not only
approved at the framing but that were continuously viewed as
constitutional by at least a substantial portion of the American
people," down to the present day. Scalia is honest enough to denounce
some decisions even when the results are politically congenial. His
dissent in the parents' rights case, for example, stressed that although
he agreed that the visitation statute was a bad law, nothing in the
Constitution empowered the Court to strike it down. But on most issues,
Scalia's judicial philosophy appears to align with his conservative
political and moral beliefs: He has evinced deep moral disapproval of
abortion and affirmative action preferences; he is skeptical of the need
for more federal regulation; he approves of the death penalty and other
tough-on-crime measures; he is a practicing Catholic who disapproves of
homosexual conduct and supports federal aid to religious and other private
schools; and he has assailed as unwarranted judicial activism a variety of
decisions that happen to be offensive to those who hold such
beliefs.


Almost all liberal Justices since the 1960s, on the other hand, have
argued that the Court should construe and update the Constitution to serve
(their own) evolving notions of human decency, and to give federal civil
rights laws and regulatory statutes favored by liberals a sweeping
interpretation to serve their "remedial purposes."


Perhaps the most ideologically neutral, and least pejorative, definition
is the rather elastic one suggested above: Judicial activism involves
invoking novel or debatable interpretations of the Constitution to strike
down democratically adopted state or federal laws and practices that
offend one's moral or political beliefs, while showing relatively little
deference to the other branches of government and the voters. By that
standard, all nine Justices are indeed activists at least some of the
time. Former Acting Solicitor General Walter Dellinger, who teaches at
Duke University Law School and practices law in Washington, puts it this
way: "This is a very confident Court." Confident that it knows
best. Confident that its rulings will be enforced, not defied. Confident
enough to sweep away laws so popular that hardly anybody in Congress would
dare vote against them.


The Popularity Gap


Despite-or perhaps sometimes because of-judicial activism, people seem to
have far more confidence in the Supreme Court than in Congress, and
substantially more confidence in the Court than in the executive branch.
That is what poll data have consistently indicated since 1966, when the
Harris Poll started asking people how much confidence they had in the
three branches.


What explains this seeming paradox? Why would the unelected, life-tenured,
relatively unknown Justices, who purport to ignore public opinion and
regularly strike down laws so popular that they pass Congress by big
bipartisan majorities, so consistently out-poll the people's elected
representatives, who seek so assiduously to please their constituents and
even advertise their own virtues on TV? Academic experts have suggested a
number of reasons, although there is no consensus on which is most
important:


* Invisibility. "The public simply likes its politics to be out of
public view," says John R. Hibbing, a professor of political science
at the University of Nebraska and co-author (with Elizabeth Theiss-Morse)
of a 1995 book, Congress as Public Enemy: Public Attitudes Toward American
Political Institutions. "Whenever Congress is in the news," he
adds, "its popularity tends to go down." Thus, the Court is
relatively popular in part because its members and its internal processes
are rarely mentioned and never shown on TV.


* Disinterestedness. Voters also want their public servants to be
uninfluenced by self-interest, adds Hibbing. Even the purest elected
officials often fail that test in the voters' eyes because they raise
millions in campaign money to get elected and have to keep raising
millions to get reelected. Members of Congress also get widely publicized
perks such as the use of athletic facilities and free trips to cushy
resorts. The Justices, on the other hand, raise no money, don't pander for
anyone's support, don't cut grubby deals, don't lust after higher office,
don't get highly visible perks, and don't consult pollsters on how to
vote.


* Wisdom. Scalia scornfully suggested in a 1990 opinion that the Justices
are no more qualified to make law for the nation on issues such as the
"right to die" than "nine people picked at random from the
Kansas City telephone directory." But most of the people listed in
that directory would probably disagree. All nine Justices appear to be-and
in fact are-unusually smart, conscientious, hard-working, principled,
dedicated, dignified public servants. That may not add up to wisdom. But
it's


a start.


* In tune with the zeitgeist. In the view of professor Barry Friedman of
New York University Law School, a big reason for the Court's popularity is
that it "is much more majoritarian" in the real world than it is
portrayed as being in civics lessons. Elected officials choose Justices
through an intensely political process, and "by and large [their
choices] tend to share the views of a broad swath of public opinion.... At
some level they live in our world and read our newspapers." In
addition, "when you look at the detail of how constitutional law
works, most of it is with a thumb on the scale to take into account public
opinion," says Friedman, such as when the Court considers
"evolving standards of decency" in deciding what amounts to
"cruel and unusual punishment," and consults "reasonable
expectations of privacy" in interpreting the Fourth
Amendment.


This is not to say that the Court panders to transitory public opinion, or
that it should, or that the public would want it to, Friedman stresses.
Indeed, "Every now and then the Court stands tough" and bucks
majority opinion on big, controversial issues. But it has known better
than to set itself against a broad, sustained, social consensus, except in
a few episodes such as the early New Deal, when the Court stood in the way
of national economic regulations demanded by most voters. So it should be
no surprise, Friedman says, that the Court often "mirrors public
opinion fairly well." In addition, notes Walter Dellinger, because
some of the current Court's big decisions (on abortion, for example)
please liberals and some (on federalism and property rights, for example)
please conservatives, "everybody's a stakeholder in judicial activism
now. Across the political spectrum, people have issues they really care
about where the Court has come through for them."


Not So Conservative


If the Court often mirrors public opinion, why has it been so widely
characterized in the media, for so many years, as getting more and more
conservative? The reason is that from the perspectives of the mostly
liberal journalists and law professors who closely follow its work and
help shape its public image, the Court is conservative: It's more
conservative than they want it to be, and it seems more conservative than
it was during the good old days of Earl Warren. "Liberal law
professors came to have ... a `religious and mystical' view of the Warren
Court," writes Lucas A. Powe Jr. in a new book, The Warren Court and
American Politics. And the journalistic need to attach to each individual
Justice a brief ideological label that is reasonably consistent with
general usage leads many journalists (including


this one, in this very article) to sometimes put the
"conservative" label on Justices O'Connor and Kennedy even
though they might more accurately


be called centrists who lean a bit to the right on some issues and a bit
to the left on others. (The need for journalistic shorthand also means
affixing the "liberal" label to Justices Stevens, Souter,
Ginsburg, and Breyer, who are all far less liberal than were the late
William J. Brennan Jr. and Thurgood Marshall.)


But if measured against poll data indicating the views of the broad
American public on the big issues, the current Court is about as centrist
as it could be. The Court's balance of power is held not by its three
solid conservatives (Scalia, Thomas, and Rehnquist), but by O'Connor and
Kennedy. On ideologically polarizing cases, the three conservatives need
both of their votes to win. And those votes often come with a hedge,
because if O'Connor or Kennedy doesn't want to go as far as the three,
then the reach of the decision can be limited. Here's how it has worked
out on some of the most controversial issues:


* Abortion. The Court's jurisprudence seems very much in sync with public
opinion, perhaps a bit to the left of center. There is clear majority
support for the basic right of an adult woman to have an abortion. But the
public doesn't want to go so far as to use tax dollars for Medicaid
abortions, to allow abortion on demand for minors, or to say that anything
goes as far as late-term abortion procedures are concerned. That's about
where the Justices have come down-although they have probably made minors'
access to abortion easier than most voters would like-with O'Connor and
Kennedy joining the four liberals in protecting the basic abortion right
and parting company with them on how broad that right should be.


* Affirmative action preferences. Polls show that solid majorities like
"affirmative action" and dislike race and gender
"preferences." This reflects both the broader, vaguer, and more
inclusive connotation of "affirmative action" and a considerable
degree of public ambivalence. This ambivalence is mirrored on the Court.
The three conservatives and perhaps Kennedy would apparently like to
abolish racial preferences, or come close to doing so. The four liberals
would open the door wide to such preferences. O'Connor, who holds the
balance of power, is keeping her options open, which helps explain why the
Court has not taken up a major affirmative action case since 1995. And
although the 1995 decision and resulting media coverage gave "the
surface impression of an attack on race-based classifications even for
affirmative action purposes," says Harvard Law professor Laurence
Tribe, such a view "seems misleading" because O'Connor's mushy,
deliberately ambiguous majority opinion left officials and lower courts
considerable latitude to keep preference programs.


* Religion in schools. On issues such as school prayer, the Court seems to
be to the left of public opinion, which has long supported the kinds of
organized school prayer that the Justices have barred. The public also
wants the Ten Commandments posted on classroom walls, which the Court has
also barred. As for tuition vouchers for religious schools, which the
Court's conservatives seem likely to approve and the liberals seem likely
to find unconstitutional, they are not unambiguously conservative: Black
and Hispanic people seem to lopsidedly support them while teachers' unions
fervently oppose them. And what was so "conservative" about the
5-4 decision in 1997 to reinstate a federal program designed to help
disadvantaged children by sending public school teachers into religious
schools to provide remedial services?


* Federalism. Even on this front, where the five more-conservative
Justices vote as a cohesive bloc, the Court seems to be moving in the same
general direction as public opinion. Friedman stresses that the Republican
sweep in the 1994 elections, and the accompanying enthusiasm for
devolution of power to the states, indicated that the voters were becoming
more skeptical of big government in Washington. So did the laws limiting
the terms of members of Congress-which the Court struck down, putting
itself to the left of public opinion on that issue.


So we really have a centrist, activist Court-one that is too liberal for
most Republicans, too conservative for most Democrats, and too eclectic to
outrage most of the people much of the time. The next President might (or
might not) have an opportunity to change this balance in a big way, as
Franklin Roosevelt did by appointing eight of his supporters between 1937
and 1943. Or he might go the way of Harry S. Truman, who named four
Justices between 1945 and 1949, only to end up complaining: "Packing
the Supreme Court simply can't be done.... I've tried it and it won't
work.... Whenever you put a man on the Supreme Court, he ceases to be your
friend."


Stuart Taylor Jr.

National Journal