Justice Right Face!

By Richard Lacayo

The former Supreme Court Justice William Brennan used to tell his clerks, "Five votes can do anything around here." That was in the days when Brennan regularly stitched together a narrow liberal majority on a high bench that was delicately balanced between left and right. Those days are over. Five votes can still do anything. But now it's the court's increasingly assertive right wing that usually has them -- and sometimes more.

As the court heads toward the conclusion of its latest term, it has finally completed its decades-long transformation from the liberal bastion of former Chief Justice Earl Warren into an aggressively conservative body -- one that seems poised to alter some of the major rulings of the past. To fellow conservatives, the right-wing majority may look like the cavalry galloping to the rescue. Battered liberals are more apt to see them as the ravaging horsemen of the Apocalypse. The only question is how far they will go in undoing the liberal legacy in such areas as church-state relations, individual liberties, the rights of criminal defendants and abortion.

The new majority, led by Chief Justice William Rehnquist, has been building in slow motion. In the early 1970s, during Rehnquist's first few terms on what was still a liberal-leaning bench, he was so isolated that his clerks took to calling him the Lone Ranger. These days he no longer rides alone: he routinely joins a group that includes Reagan appointees Antonin Scalia, Anthony Kennedy, Sandra Day O'Connor and Bush appointee David Souter. Having written only a few rulings since joining the court this term, Souter remains something of an , enigma; yet he has clearly provided the right wing -- spearheaded by Rehnquist and Scalia -- with a crucial fifth vote in a number of important cases in which his predecessor Brennan would almost certainly have been on the opposing side.

Nor are the conservatives strictly limited to those five votes. Byron White is likely to join them on some cases, often those involving criminal law and police powers. Even John Paul Stevens supports them on many free-speech issues. That leaves Thurgood Marshall and Harry Blackmun, both 82, the oldest members of the court, as its only unbudging liberals. "The swing Justices no longer control the outcome," says Duke University law professor Walter Dellinger. "There's no swing Justice, really."

For years the court spared lawmakers the hard task of resolving difficult issues like abortion and school desegregation by imposing solutions in a constitutional wrapping. The new court is far more likely to toss such explosive matters back to state legislatures and Capitol Hill. "We're playing a rearguard action just trying to keep what we have," says California Democrat Don Edwards, who chairs the House Judiciary Subcommittee on Civil and Constitutional Rights. "Congress has to do the work we had counted on the court to do."

In its next term, which begins in October, the court will probably have a clear opportunity to overturn the 1973 Roe v. Wade ruling that granted women the constitutional right to have an abortion -- just as the presidential election season gets under way. Last week both houses of the Louisiana legislature overrode Governor Buddy Roemer's veto of a bill that would prohibit virtually all abortions, except to save the life of the mother or in some cases of rape or incest. The new law was rushed before a federal judge in New Orleans, who will hold a hearing next month on its constitutionality, the first step on the road to the Supreme Court, where antiabortion laws from Pennsylvania, Utah and Guam are also headed.

Any of those laws could provide the court with an opportunity to overturn Roe -- a prospect that seemed nearer than ever after last month's decision in Rust v. Sullivan. In that case, by a 5-to-4 vote in which Souter sided with the conservatives, the court ruled that doctors, nurses and other care providers at clinics that accept federal funds cannot even mention abortion to their patients. "I've never had much hope for this court," says Colleen O'Connor, public-education director for the A.C.L.U. "But I was never as dispirited as when it came down with the Rust decision. In some ways, it's not safe to bring a civil-liberties case to this court."

Making the court unsafe for all kinds of cases is part of the conservative agenda. A sampling of last week's rulings gives a good indication of the court's current rightward tilt:

-- In a 5-to-4 vote, the Justices made it more difficult for inmates to win lawsuits to improve their prison living conditions. Now they must prove that prison administrators had acted with "deliberate indifference" to basic human needs.

-- In another 5-to-4 decision, the court ruled last week that states and local governments may ban nude dancers in bars and other adults-only establishments. The decision was narrow in its effects -- G-strings and pasties make the dancing O.K. under the Indiana ban -- but Rehnquist's defense of the law may open the way to other stricter laws governing sexual conduct.

-- Voting 6 to 3, the Justices decided that police may search a bus passenger's baggage if he agrees, even if they have no warrant or probable cause to suspect him of any crime. "Working the buses," as the police call it, has become a common method of interrupting the interstate flow of drugs. Last week's ruling followed a string of recent decisions that gave police the power to conduct searches without warrants. The court also decided during this term that suspects who were arrested without warrants may be held for up to 48 hours before police press charges.

The conservative sway is by no means absolute; the liberal wing can still claim an occasional victory. Last week the Justices ruled 6 to 3 that the 1965 Voting Rights Act applied to the election of state and local judges. That gives blacks and other minorities an opportunity to bring lawsuits to change voting methods in the 41 states where some judges are chosen by ballot. In an important victory for women's rights, the court ruled unanimously in March to disallow so-called fetal-protection policies that bar fertile women from jobs that might pose dangers to an unborn child.

Rehnquist and his fellow conservatives moved aggressively this term to capitalize on their majority -- even to the point of deciding issues that had not been formally raised before them. For example, they ruled that coerced confessions were not automatically barred from use as trial evidence, though the case at hand did not require them to pronounce on that question. In . another case, involving the rights of crime victims, they have asked both parties to reargue a Burger Court ruling that neither side had questioned.

A court that approves challenges to settled law tends to invite more of them. To anyone unhappy with the legacies of the old Supreme Court, the new Supreme Court appears to be sending this message: come up and see me sometime. With several of the Justices scornful of court-imposed restrictions on church- state relations, new attempts to restore school prayer are likely, as well as laws that approve the use of government funds for parochial schools.

After decades of waiting to reverse the liberal court trend, Rehnquist's impatience is almost palpable. Conservatives often used to accuse the Warren Court of taking decisions out of the hands of Congress and state legislatures. But even as his court is kicking some issues back to lawmakers, the Chief Justice has been willing to do some of his own legislating from the bench. A revealing case in point is his persistent effort to streamline capital punishment. For years Rehnquist urged Congress to pass a law that would prohibit death-row inmates from repeatedly filing so-called habeas corpus petitions requesting that their verdicts or sentences be reconsidered in court. Rehnquist complained that they needlessly dragged out death sentences and crowded the court with mostly frivolous petitions.

But legitimate habeas corpus petitions have been crucial to death-row inmates whose lawyers, many of them lacking experience in complex capital cases, often miss crucial issues at the trial level. Some 40% of all death sentences are overturned because a federal judge agrees there was some constitutional error in the verdict or sentence. Much of the legal profession was therefore pushing for a compromise that would reduce such petitions while guaranteeing that indigent Defendants could obtain more competent attorneys when they were tried for capital crimes.

But Rehnquist would not relent. When both federal judges and Democratic leaders in Congress resisted his efforts to expedite executions, he moved to achieve the same result from the high bench this term. His vehicle was a Georgia case, McCleskey v. Zant. Though it meant going further than the case required, the persuasive Chief Justice fashioned a 6-to-3 majority in favor of setting up procedural obstacles to repeated habeas corpus requests.

If Rehnquist is the muscle behind the present conservative majority, Scalia provides the intellect. Despite his affable manner, Scalia can be intense in debate and uncompromising in his rulings. As the only present court member who was once a full-time law professor, he is prone to lecture his colleagues -- sometimes in injudicious terms. In a 1988 concurring opinion, for example, he called one of O'Connor's arguments "irrational" and said of another that "it cannot be taken seriously."

Scalia's strongly held legal principles and unyielding manner prevent him from playing the role of court politician that was a specialty of William Brennan, who could adroitly adjust his written opinions to attract the votes of his wavering fellow judges. "When Scalia states his view in the strongest terms, often the other conservative Justices drop a footnote saying they don't necessarily agree," says Joseph Grano, a law professor at Wayne State University in Detroit. But the hard edge of Scalia's writings is the very thing that has made him especially influential with judges in the lower federal courts, where they appreciate the clear guidance he offers as to how they should apply Supreme Court precedents.

One article of faith among conservative jurists is that the courts are no place for resolving questions better left to the legislative branch. The Supreme Court is already taking that to heart. During this term it agreed to hear arguments in just 125 cases, down sharply from 170 two years ago. One reason for the decline is that since two-thirds of all current federal judges are Reagan or Bush appointees, Rehnquist and his like-minded colleagues are seeing fewer lower-court rulings with which they sharply disagree. The high court's conservative majority has also been handing down decisions, such as the one last week on inmate lawsuits, that make cases more difficult to bring to trial and to win. "The argument that has the greatest effect nowadays is for judicial economy," says Columbia University law professor Vincent Blasi. "They're working very hard to cut down on opportunities for litigation."

At the same time, liberal groups are steering clear of the federal courts, fearing defeat at the lower levels or worse at the top, where their cases might be seized upon as an opportunity to overturn important liberal precedents. They haven't given up litigating, however. Organizations such as the NAACP Legal Defense Fund and the A.C.L.U. have been turning more often to the state courts. Though state judges were once regarded as cracker-barrel reactionaries, these days some state constitutions have been interpreted by the courts to provide more specific guarantees of individual liberties than the federal Bill of Rights.

What hope do liberals have now that the tide is running against them on the Supreme Court? One recourse is to turn to Capitol Hill. When the high bench acts to interpret congressional legislation, Congress can vote to overrule the Justices -- if that vote can survive a presidential veto. That's a big if. House and Senate committees both have approved legislation intended to overturn Rust v. Sullivan, but Democrats in Congress doubt they will have the two-thirds majority necessary to override an almost certain veto. The same is true in the bruising fight over a new civil rights act -- the one Bush labels a quota bill -- that was introduced to overturn a string of Supreme Court rulings that made it harder for minorities and women to sue employers for discrimination.

Liberals can take heart in the tendency of some Justices to shift views during their years on the bench. Blackmun moved to the left from his first days on the court. On the whole, O'Connor has drifted toward the center. Souter, who voted the same way as O'Connor in dozens of cases this term, may yet do the same. But the possibility of gradual leftward movement is cold comfort to liberals who realize their two aging champions, Marshall and Blackmun, may eventually be replaced by George Bush appointees. And that would almost certainly turn the conservative bloc into a juggernaut that will dominate the court well into the next century.

With reporting by Julie Johnson/ Washington and Andrea Sachs/New York