The justices who took their seats for yesterday's hearing gave a glimpse of a future Supreme Court.
Introduced as "the associate justices of the Supreme Court" -- the chief justice is too ill to attend oral arguments -- only seven of the court's nine members took their places on the bench. In addition to the expected absence of William H. Rehnquist because of his thyroid cancer, the court's John Paul Stevens, 84, was also missing.
Chief Justice William Rehnquist's absence was expected.
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Sandra Day O'Connor, presiding over the court for the first time, temporarily put liberals' fears to rest: Stevens's absence owed not to illness but to a canceled flight. Still, the two empty chairs, belonging to the court's two oldest and longest-serving members, served as a reminder of the uncertainty surrounding the court's future composition. Not a single justice in the chamber predated the Reagan presidency.
But yesterday's arguments -- in a pair of important property rights cases -- suggested that even significant changes in the court's composition may not automatically translate into major shifts in its sentiment. As they grilled property rights advocates yesterday, the justices, regardless of ideology, displayed a reluctance to break with precedents and to disrupt the status quo.
The Institute for Justice, a conservative legal group that argued one of the cases yesterday, saw an opportunity in the court's changing membership to challenge decisions on eminent domain from 1954 and 1984. "The court has not weighed on this in many years, and its composition has changed significantly," said Scott Bullock, who argued the case.
But instead of a friendly hearing, Bullock barely got a sentence out before justices of all ideologies fired off skeptical questions. "What kind of a standard are you proposing?" O'Connor asked. "I mean, what kind of test do you want?" she demanded later.
When Bullock invoked "police power" while describing actions by a Connecticut city to take private land, David H. Souter rebuffed him, saying, "I'm not interested in the label." When Bullock tried to assert that his position was consistent with earlier cases, Souter countered: "You're moving in the direction of saying we've really got to overrule the prior cases."
Even Antonin Scalia, seemingly sympathetic to Bullock, was incredulous that Bullock wanted "us to sit here and evaluate" the prospects for economic-development projects. Anthony M. Kennedy, too, voiced doubts. Only Clarence Thomas maintained his silence.
Bullock took frequent sips of water as he parried the rapid questions with polite demurrals beginning with "No, your honor -- " or "Well, your honor -- " or "Yes, your honor, but -- ."
"They certainly were pressing me," Bullock said later.
In contrast, the justices granted considerable leeway to Wesley Horton, who argued for New London's right to take private land -- even though Kennedy caught him misstating just-compensation law, and even though he flouted decorum by waving a map at the justices. Only Scalia was harsh in his questioning -- he could not believe that the rights of the property owners count "for nothing" -- and the justices even admitted what passes for humor in the court: Scalia joking about the Fuller court, Horton observing that a threat to condemn property "always facilitates a lot of voluntary sales."
The tone of oral arguments is not always predictive of the ruling. And Rehnquist, often a private-property advocate, may still participate in deliberations in the case. But if the skeptical hearing of the property rights cases yesterday was any indication, the Supreme Court is far from being as reliable as many conservatives had hoped.
"This is exemplary of the delusion of some of the conservative groups that with a revamped court, you'll have equivalent of the French Revolution in constitutional law," said Bruce Fein, a constitutional lawyer who served in the Reagan administration. "That simply is not accurate, and this case is a perfect example of that."
Fein points to the Rehnquist court's refusal to abandon Miranda warnings for criminal suspects, its knocking down (with Scalia's support) of flag-desecration statutes, and its upholding of the Family and Medical Leave Act (an opinion written by Rehnquist) over the objections of states' rights advocates. The reason: The justices are politically astute, and they are likely to retreat behind precedent rather than cause societal upheaval.
That will go for property rights as well as more prominent issues, Fein predicted. "Even with nine Scalias, Roe v. Wade is still not going to be overturned."
