The Rehnquist court has been taking fewer and fewer cases each year. Is the U.S. Supreme Court retreating from the political landscape? Not likely. Is this the court's way of halting what it perceives as past "judicial activism"? Probably not. A far more likely explanation is that the court's centrists are in control and have no truck with the archconservatives' agenda of overturning liberal precedents.
At the same time, Chief Justice William H. Rehnquist and his far-right colleagues, Justices Antonin Scalia and Clarence Thomas, appear content to avoid possible future rulings that go against what they stand for. They are engaged in damage control against the growing core of more moderate centrists who oppose overruling liberal precedents and settled law.
Last term, the court handed down written opinions in just 93 cases out of more than 7,700 cases on its docket. That is the lowest number since the 1955 term, when the Warren court decided 94 cases by written opinion out of a far smaller docket of 1,856.
By contrast, in the 1970s and '80s, the Burger court (1969-86) regularly disposed of more than 150 cases by written opinions each year. Most justices complained they were deciding too many cases.
The court has certainly solved its workload problem _ if it had one. With Rehnquist at the helm, conferences are more tightly run and the justices have become more selective in granting review. In addition, Congress, in 1988, gave the Supreme Court virtually complete discretion to decide what to decide. The court no longer has to review certain appeals. The court, as Justice Sandra Day O'Connor often stresses, decides only "hard cases" _ those raising the most divisive conflicts of the day.
The justices also generally grant review of cases in which a majority wants to reverse a ruling of a lower federal court or state court. Some court watchers speculate that, after 12 years of appointees to the federal judiciary by Republican Presidents Reagan and Bush, the Rehnquist court is content to leave many conservative appellate-court decisions alone. But there is more to the court's taking fewer cases than that.
A kind of epic struggle took place within the court and its far-right wing lost out. The most notable battle was over abortion. In Webster vs. Reproductive Health Services (1989), the court split 5-4. A bare majority refused to overrule the 1973 ruling in Roe vs. Wade on a woman's right to have an abortion.
Three years later, in Planned Parenthood of Southeastern Pennsylvania vs. Casey, the court's centrists, Justices Anthony M. Kennedy, David H. Souter and O'Connor, again prevailed. They, with Justices Harry A. Blackmun and John Paul Stevens, reaffirmed "the essence" of Roe. Rehnquist and Scalia, joined by Thomas and Byron R. White, again bitterly lamented the failure to overturn Roe. The right wing of the Rehnquist court has been fighting a rear-guard action ever since.
In the first years of the Rehnquist court, to be sure, it lunged in more conservative directions. The justices also rushed to overrule liberal precedents. In its first four terms, no fewer than 11 precedents were abandoned. In the 1990 term alone, five more were discarded. Another seven were jettisoned next term, for a total of 23. But that was the high-water mark. None has been reversed in the last two terms.
In other words, the conservative slide and hasty press to overrule liberal precedents has been abated, due to the growing influence of centrists and to changes in the composition of the bench. Reagan's elevation of Rehnquist to chief justice and the appointments of Scalia, in 1986, and Kennedy, in 1987, moved the court right. But Bush's two appointees were a mixed bag for conservatives. Thomas has proved to be a consistent ally of Rehnquist and Scalia. Souter, however, has come into his own since his appointment in 1990. He has demonstrated leadership and taken Rehnquist and Scalia to task for some of their views and insistence on overruling liberal precedents.
Democratic President Clinton's appointment of two more centrists, Justices Ruth Bader Ginsburg last year and Stephen G. Breyer this year, has further solidified the centrists' control.
Rehnquist and his two principal allies have lost the war over more than just abortion. Their defense of states rights and attempts to limit congressional power have also been rejected by the court's majority. Their efforts to allow greater regulation of commercial speech and to permit greater governmental accommodation of religion in public schools have also been rebuffed by the court's centrists.
As chief justice, Rehnquist has proved an efficient administrator, but his judicial philosophy and devotion to undoing past liberal decisions has been unpersuasive. Admittedly, he does not go out of his way to try to make converts or to put heavy-handed pressure on the others. By contrast, Scalia overplays his hand. His temperament is too much that of an academic. His acerbic wit and penchant for haranguing those who disagree have backfired. On more than one occasion, it has cost him, and the far right, the votes of O'Connor, Kennedy and Souter.
With his keen sense of humor and considerable charm, Scalia had the potential of becoming the Justice William J. Brennan Jr. of the right. Brennan was a master at forging opinions that commanded majorities. Instead, Scalia has proved more like Justice Felix Frankfurter, a former Harvard law school professor. Frankfurter also browbeat his colleagues and ended up alienating them.
Still smarting after his bitter Senate confirmation fight, Thomas has not emerged as a player. He never asks questions in oral arguments, writes few opinions and sides so often with Scalia that the latter is said to have two votes.
The right wing of the Rehnquist court thus appears reconciled to denying review to cases it knows it cannot win a majority on. The court's moderate centrists, on the other hand, appear in no mood for more acrimonious battles over such controversial issues as abortion. That is why the court has refused to grant several abortion cases in the last several terms. With the high turnover in membership, the centrists are also undoubtedly biding their time, waiting for their numbers to grow.
Another case in point was the court's denial, on Oct. 12, of an important appellate-court ruling on the First Amendment's separation of government from religion. The Court of Appeals for the 9th Circuit held that a 43-foot cross, a San Diego landmark for more than 40 years, could no longer stand on public property because it violated the First Amendment disestablishment clause.
This is the kind of case that, a few years ago, Rehnquist and Scalia would have jumped at. They would have done so with a view to reversing the lower court's decision and, perhaps, getting rid of liberal precedents upholding a "high wall of separation" between government and religion. But after taking several such cases in recent years and losing to the court's centrists, they preferred to minimize their losses. As with abortion, the court's centrists have reaffirmed liberal precedents on the First Amendment's disestablishment clause. For them, the 9th Circuit's ruling was correct and should be left alone.
Assuredly, the Rehnquist court is not going to vanish from public view. Many of the cases that were once granted, but now simply denied, involve statutory matters and conflicts in the lower courts. Congress may _ and does _ resolve such conflicts by passing new legislation.
But this term, for example, the court has already agreed to decide some major controversial social issues. The justices will consider the constitutionality of state-imposed term limits on members of the U.S. House of Representatives, and the constitutionality of a federal gun-control law. The court has also granted a major challenge to affirmative-action programs, an important school-desegregation case and several others involving freedom of speech under the First Amendment. The justices will decide as well whether states may provide lower welfare benefits to new residents. However the court rules in these and other cases, charges of "judicial activism" will undoubtedly be heard from some quarter.
The Supreme Court, moreover, can run but it cannot hide from the major social conflicts in the land. A whole batch of voting-rights cases are in the wings. The issue of homosexual rights is certain to be before the court before long _ whether as an appeal of decisions on gays and lesbians in the military or of the Colorado state Supreme Court's recent ruling striking down a state constitutional amendment that forbade localities from passing ordinances protecting homosexuals. Sooner or later, the court will also have to clarify the status of abortion rights and what restrictions on women's access to abortion constitute an "undue burden" under its Casey ruling.
Still, for the foreseeable future, the moderate centrists on the Rehnquist court are in control and likely to prevail.
David O'Brien is a University of Virginia professor and author of Storm Center: The Supreme Court in American Politics and an annual Supreme Court Watch. This first appeared in the Los Angeles Times.