Going Thisaway and Thataway

By Anastasia Toufexis

A mature Burger Court is more umpire than ideological player

Since 1969, Presidents Nixon, Ford and Reagan have appointed six new U.S. Supreme Court Justices, starting with Warren Burger, in the open hope of reversing the liberalism of the Earl Warren era. So how conservative is the Burger Court? As the Justices last week completed one of their most vigorous terms in the past decade and a half, they seemed to have ruled the question irrelevant. Says Stanford Law Professor Gerald Gunther, after considering the term's work: "They are beyond left or right description and therefore unpredictable." Concurs Professor G. Edward White of the University of Virginia Law School: "It is a floating court, with no Justices continually carrying the balance of power."

Instead, the court is pulled first thisaway, then thataway in a shifting tug-of-war as the Justices align themselves differently on almost every case. That tendency, noted in earlier terms, had been called a temporary phenomenon while a new majority matured. It now seems clear that the nature of this court is not to be an ideological player in the nation's politics, but rather to be an umpire calling the plays of others.

It often does so with boldness. This term the court ruled forcefully in an unusually large number of major cases, most notably by striking down Congress's asserted right to exercise a legislative veto of Executive Branch actions. Conservatives enthusiastically applauded rulings that strengthened the search-and-seizure powers of law-enforcement officials and that permitted parents in Minnesota to take tax deductions for the costs of educating their children in religious schools. Liberals were equally pleased by reaffirmations of the 1973 freedom-of-choice abortion decision and the denial of tax-exempt status to private schools that practice racial discrimination.

In still other cases, "traditional labels got mixed up," says Professor Louis Michael Seidman of Georgetown University Law Center. "Decisions that looked liberal are really conservative." Nuclear energy opponents hailed a ruling that federal law permits states to block construction of new nuclear plants for economic reasons, but the opinion reflected a conservative reading of legislative intent. Congress, the court reasoned, did not mean to displace traditional state powers.

The Justices' unpredictable attitudes, however, can lead to considerable confusion. Lengthy multiple-opinion decisions have become frequent. Says University of Chicago Constitutional Expert Philip Kurland: "Every lawyer searches for something he likes, and there is something for everyone. They have everything but the kitchen sink in them." Many blame the sheer number of cases the Justices tackle each year. Says University of Chicago Law Professor Dennis Hutchinson: "They are so busy and so overworked, they cannot talk so much to each other. So they usually wind up speaking to each other in print."

The Burger Court also has a tendency to go in seemingly conflicting directions. In only one area, criminal law, has a clear path developed; the majority generally favors a steady trimming of defendants' rights. More typical are two First Amendment cases cited by Harvard Law Professor Laurence Tribe. In one case, the court threw out a federal law prohibiting sign carrying on the sidewalks surrounding the Supreme Court building. In another, the court ruled that an assistant district attorney's right of free speech had not been violated when she was fired for distributing a questionnaire to fellow prosecutors that was implicitly critical of office procedures. Says Tribe: "The first ruling was a symbolic victory for free speech that will matter little to anyone, but the second is a devastating setback to the freedom of every public employee."

The court's inconsistency sometimes means that on different cases the same Justice sits on opposite sides of what would appear to be the same fence. In a decision three years ago, Justice Harry Blackmun voted with the majority that a life sentence for three nonviolent felony convictions did not constitute cruel and unusual punishment. This term he helped throw out a sentence of life imprisonment without parole for a man convicted of seven nonviolent felonies. Ten years ago, Justice Lewis Powell wrote the majority opinion in overturning a New York State statute that provided tax benefits for parents of children in parochial schools. This term he sided with the majority upholding the Minnesota law that permits tax deductions to parents of children in religious schools. Says University of Chicago Law Professor Geoffrey Stone: "Neither one of them made any serious effort to rationalize switching their decision. It was consistent unpredictability all along."

"People keep knocking this court for not having a rudder," says Law Professor Yale Kamisar of the University of Michigan. "We should not expect that of a court. The Warren Court was a historical anomaly." It had a clear-cut liberal majority and a conservative minority, both of which acted predictably. The heart of today's court is its middle. The left flank is held by Justices Thurgood Marshall and William Brennan; the right is anchored by William Rehnquist and, much of the time, Sandra Day O'Connor and Burger. Of the remaining Justices, Byron White and Powell are generally more conservative than John Paul Stevens and Blackmun, but all four are pragmatic centrists, suspicious of pure ideology on either side.

"This is actually quite a strong court in the center," says Columbia Law Professor Vincent Blasi. "There are few eras in Supreme Court history where the real swing Justices were as intelligent, thoughtful and open-minded." It is their strength that accounts for the fact that the court has not been the all-out antidote to the Warren Court that the past three Republican Presidents had hoped to create. In one chapter of The Burger Court: The Counter-Revolution That Wasn't, a forthcoming collection of essays on the court by several scholars, Blasi has written of the "new centrist activism" on the high bench: "An activist court is one that regularly exercises the power of judicial review to enforce controversial as well as consensual norms. By that standard, the Burger Court has been very much an activist court. Rootless activism is activism nonetheless."

--By Anastasia Toufexis. Reported by Sheila Gribben/Chicago and David S. Jackson/Washington

With reporting by Sheila Gribben, David S. Jackson This file is automatically generated by a robot program, so viewer discretion is required.