Archive for Wednesday, November 3, 2004

Supreme Court not easy to predict

November 3, 2004

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Quarrel with his jurisprudence if you will, but Chief U.S. Justice William Rehnquist is a likable fellow -- as personable in person as he can be gruffly imperious to lawyers who at oral arguments forget to address him by his full title.

When I covered the court (1987-94), I'd often pass him on his morning stroll around the building with a clerk -- not that many of the tourists about recognized this slightly stooped man in the quirky hat as the country's most powerful jurist.

The prospect of his leaving the court where he has served for 32 years, 18 of them as chief, carries layers of implications for an institution not given to radical or rapid change.

Not that he's going anywhere immediately -- but that doesn't stop speculators.

Although the 80-year-old had planned to be back on the bench Monday, chemotherapy treatment for thyroid cancer prevented him from hearing arguments in a pair of cases involving federal taxes on litigation proceeds and another testing the scope of "seaman" status under the Jones Act.

Of course, those scintillating kinds of disputes aren't the sort that have defined his leadership of the court. And they're certainly not the inflammatory type -- say, abortion, gay marriage, affirmative action -- foremost in the minds of those wondering about possible successors whom the next president will favor.

Even if Rehnquist were to retire during the next year, a new chief justice wouldn't be able to grab "red-meat" cases willy-nilly. Despite its broad discretion in choosing the petitions it decides to decide, the court must wait for "cases and controversies" to make their way up the litigation mountain.

For all the consternation about recent rulings on divisive social issues, it will take more than one new justice to cause significant ripples. Don't forget that the 1992 ruling affirming Roe v. Wade was fashioned by Republican appointees Sandra Day O'Connor, Anthony Kennedy and David Souter.

Kennedy wrote a 5-4 ruling in 1992 against clergy-led prayers at high school graduations and the 6-3 ruling last year that struck down Texas' law criminalizing homosexual sodomy. O'Connor, who more than any other justice helps decide close cases, wrote the majority opinion in 2003 allowing consideration of race along with other factors in college admissions.

Besides the unpredictability of the justices themselves, it's also tricky anticipating the most contentious issues that could confront the court under the next chief -- whenever that person has the opportunity to take office.

For instance, the response of the executive and legislative branches to the Sept. 11, 2001, attacks has generated legal disputes that weren't anticipated in the days leading up to the 2000 election. Who foresaw the court curtailing the broad executive powers favored by the Bush administration in dealing with enemy combatants?

It's popular to tag the justices as "liberal" or "conservative," but those labels are simply too simplistic to describe what often are complex and nuanced views about how the law fits particular scenarios.

Certainly, the Rehnquist court often has been more likely to constrict congressional power and less likely to expand individual rights, but not universally so.

Although Rehnquist led the court in limiting Congress' ability to enforce civil rights laws against the states, that movement hit the brakes last year in a Rehnquist opinion that said state workers could sue their employers for violating the 1993 Family and Medical Leave Act.

When the court in 1999 affirmed its Miranda ruling on the use of criminal defendants' confessions, Rehnquist wrote for a 7-2 court, even though he had long criticized Miranda.

President Bush, who has so patly pooh-poohs rulings he doesn't like by decrying "activist judges," praises Justices Antonin Scalia and Clarence Thomas as his model jurists.

But it might surprise Bush that, during a 2000 appearance in Fort Worth, Scalia acknowledged that "the conservatives are just as willing to bend the Constitution to their desires as liberals are."

And Thomas hardly shows a conservative respect for stability in the law by subscribing to the theory that overturning rulings you disagree with isn't activism at all. His "originalist" view of the Constitution is so narrow and rigid that it wouldn't accommodate the modern world as we know it.

Sen. John Kerry, on the other hand, has said he would appoint judges who protect civil rights and women's rights and interpret the Constitution "according to the law."

In a May op-ed piece in The New York Times, Justice Stephen Breyer, who as a 1994 appointee is the newest justice, said that "our Constitution was meant to create a democracy that worked not just on paper but in practice."

The president sworn in next January should keep that in mind.

-- Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram.

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