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  •   Justices Favor Pragmatism Over Liberalism

    By Joan Biskupic
    Washington Post Staff Writer
    Sunday, June 27, 1999; Page A1

    One of the most important rituals in the grand white marble and red velvet setting of the Supreme Court is the announcement of a decision and naming of the justices who agree with it -- and those who don't. As the Supreme Court term ended last week, four names were a refrain of dissent, often recited with a hint of weariness at their recurrence: "Stevens, Souter, Ginsburg and Breyer."

    This is the foursome fighting the bold conservatism of the Rehnquist majority. These are the liberal stalwarts of the bench.

    Except they're not.

    Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer are Exhibit A for the changing face of liberalism in America. The term that ended last week showed more than ever that while these three men and one woman stand to the left of the potent majority bloc, they do not stand for judicial liberalism as it was known even a decade ago, when the justices trying to block the newly consolidated Rehnquist majority were William J. Brennan Jr., Harry A. Blackmun, Thurgood Marshall, and Stevens -- then the most conservative of the four.

    "This is a court without any liberals," said University of Chicago law professor Cass Sunstein, adding that, for better or worse, "no one believes in using the Constitution as a weapon for social reform."

    The changes in the court mirror the broader changes in American politics over the last two decades. The wave of public dissatisfaction that brought Ronald Reagan to the presidency in 1980 trickled down to the judiciary through 12 years of GOP appointments. By the time Bill Clinton was elected in 1992, the Democratic Party had responded to the national move to the right by divesting itself of many of its more liberal elements. Accordingly, Clinton's appointees have hewed to a moderate path.

    This reality is reflected in the justices' bottom-line rulings, as well as in the principles they articulate and the rhetoric they employ -- which today rarely dwells on the plight of the weak, poor or socially scorned of America.

    These four justices are concerned with legal authority, rather than social ideals. They have a broader vision of the Constitution and federal law than the Rehnquist conservatives, to be sure, but rather than expressing an overarching judicial philosophy, they tend to take cases as they come. Pragmatism is their watchword. And unlike both yesterday's liberals -- who believed the court should intervene in society's most pressing dilemmas -- and today's conservatives -- who would consistently prefer to scale back government -- these justices generally take the path of least intervention, deciding cases narrowly and avoiding broad mandates.

    The actual votes of Stevens, Souter, Ginsburg and Breyer in recent cases tell much of the story: When the court upheld the death penalty for a Virginia killer, despite the prosecution's holding back key evidence that the court acknowledged might have spared the man, Stevens wrote the opinion and Ginsburg and Breyer joined it.

    When the justices curtailed the scope of federal law protecting disabled workers from discrimination, Souter and Ginsburg signed on. And when the majority limited the First Amendment rights of illegal aliens, Stevens, Ginsburg and Breyer were with them to a considerable degree. Only Souter dissented.

    Even when the four justices did band together to vote against the conservative majority's judgment, they were heavy on legal precedent, light on overarching principle or moral outrage.

    Last week, for example, the conservative majority of Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas declared that a company sued for sex or race discrimination because of a manager's misconduct doesn't have to pay punitive damages if the company had made a "good faith" effort to follow civil rights laws. The ruling came out of the blue: The case in question hadn't focused on that particular issue and neither side in the job-bias fight had been asked to present arguments on it.

    Stevens, Souter, Ginsburg and Breyer complained that the standard was "ill-advised," but on procedural grounds -- they were unhappy the question hadn't been covered in legal briefs. It was in decided contrast to the passion of dissenting justices exactly 10 years ago when a narrow majority similarly restricted the reach of civil rights job protections, and Blackmun let loose an emotional tirade questioning whether the majority even realized race discrimination still existed.

    Also last week, the five-justice majority upheld the death sentence of a Texas murderer despite mistakes in the judge's instructions to the jury. The four-justice dissent copiously detailed the procedural flaws in the case. But reflecting the reality that not a single member of this bench disapproves of capital punishment, the dissent was devoid of outrage at the ultimate penalty.

    The contrast of then-and-now liberalism was especially obvious this term because the court revisited legal disputes from prior decades.

    When all four on the left voted, with O'Connor and Kennedy, to strike down a Chicago ordinance against loitering by suspected gang members, the straightforward opinion by Stevens emphasized that the law lacked adequate guidance for police officers. Absent were the lofty social ideals of Justice William O. Douglas, who in a 1972 opinion striking down a Jacksonville, Fla., vagrancy ordinance, quoted Walt Whitman on the value of "wandering or strolling."

    In 1969, when the court struck down state laws and a District statute setting residence requirements for welfare families, the majority relied on a loosely defined "right to travel" and an open-ended constitutional analysis favoring individual rights.

    Ringing with concern for the human needs of food and shelter, the opinion by Brennan stated, "[W]e do not perceive why a mother who is seeking to make a new life for herself and her children should be regarded as less deserving because she considers, among other factors, the level of a state's public assistance."

    This year, by contrast, when the court threw out a California law that stopped new residents from getting full welfare benefits for a year, the majority opinion -- written by Stevens and joined by Souter, Ginsburg and Breyer, as well as O'Connor, Scalia and Kennedy -- spurned Brennan's expansive reasoning, grounding the ruling instead in a specific provision of the 14th Amendment supported by those across the ideological landscape: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

    One need not reach back a quarter-century to see change in the tenor of the court. Just 10 years ago, the court's minority bloc of Brennan, Blackmun, Marshall and Stevens vigorously promoted a liberal, interventionist agenda. Brennan and Marshall in particular embraced the idea that constitutional rights expanded with the years. They were driven by an activist vision that judges could correct society's ills.

    Brennan, who joined the court in 1956 and was both the pen and the persuasive force behind the Warren Court ideals, retired in 1990, replaced by the low-key intellectual Souter. Marshall, the nation's first black justice, stepped down in 1991, succeeded by Thomas, the nation's second. Blackmun left the court in 1994, and President Clinton replaced him with Breyer, a moderate. A year earlier, when right-leaning Justice Byron R. White had retired, Clinton had appointed Ginsburg, a centrist on the D.C. Circuit Court of Appeals.

    As much as Stevens, Souter, Breyer and Ginsburg might want the nation to address the plight of the poor and disenfranchised, as a group they believe that mission rests with the legislature, not the bench.

    Where the four do show their teeth is in the fight over the structure of government. When the five conservatives gave more power to the states at the expense of Congress last week, the four dissenters criticized the majority in exceptionally strong language, describing the ruling as "indefensible" and destined to be "fleeting." But the evident source of their outrage was not that the decision would have terrible consequences for Americans, but rather that it was lacking in constitutional authority.

    "Liberals are a vanishing breed in American life generally," asserted Columbia University law professor Michael Dorf. "The Clinton justices represent the liberal left of the Rehnquist Court, just as they represent the liberal left of American politics."

    Dorf, who served as a law clerk to Kennedy, and Sunstein, who once clerked for Marshall, say the absence of a strong liberal voice is a loss for constitutional debate.

    "Even for those like me who don't agree with [old-fashioned liberalism]," Sunstein said, "having a liberal voice would illuminate the issues, see them sharply defined. When Brennan or Marshall would lose a case, they would write and stake out the boundary."

    © 1999 The Washington Post Company

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