COVER

THE REHNQUIST COURT

WILLIAM LOWTHER January 11 1988
COVER

THE REHNQUIST COURT

WILLIAM LOWTHER January 11 1988

THE REHNQUIST COURT

COVER

The justices of the United States Supreme Court, sometimes known as the “The Brethren,” have a collective reputation for intensity on the bench. As a result, when the judges broke into laughter on Dec. 2 they established a precedent—in behavior. The incident occurred during the presentation of an appeal by the owners of the sex magazine Hustler against the award of $260,000 in damages to evangelist Jerry Falwell. The lower-court award was to compensate Falwell for what he had described as his “emotional distress” over Hustler’s publication of a parody depicting him and his mother having a drunken orgy in an outhouse. Hustler’s lawyer, Alan L. Isaacman, in unwitting mockery of his client, told the court that the magazine was saying, “Let’s deflate this stuffed shirt. Let’s bring him down to our level.” Even Chief Justice William H. Rehnquist joined in the laughter. The Hustler case has implications

for all media groups and will be decided later this year. Until then, the court’s deliberations will all be held in the strict privacy of locked chambers. That compulsive, clannish secrecy in reaching conclusions that sometimes change the very fabric of American life may never change. But even under the ultraconservative Rehnquist, the stone face of the court has definitely cracked. He tells fellow justices: “Don’t call me Chief. I’m still Bill.” The 320 clerks and secretaries nearly all agree that this may be what they call the first “happy” court. That does not mean that Rehnquist’s easy manner has led to harmony and agreement. On major issues the court remains as divided as ever. As Rehnquist says of his fellow justices, they are as “independent as hogs on ice.”

That is a tradition of the American court, but Chief Justice Brian Dickson of the Supreme Court of Canada says that his eight fellow judges also “have

minds of their own.” Still, there are differences between the two courts. In Canada, the Prime Minister appoints the court’s justices, and they have to retire at 75. In the United States, Supreme Court judges are appointed by the President, confirmed by the Senate and then installed in the job for life. Most stay until they are forced to retire by ill health or slipping intellect.

Cool: Presidents select judges partly on the basis of their political philosophies. Conservative Ronald Reagan favors those who oppose abortion and who agree with capital punishment and voluntary prayer in schools. He prefers those who are cool toward affirmative action and give high priority to business interests. But in Canada, recent prime ministers have shown less concern for the political philosophies of potential Supreme Court candidates than for the need to ensure that all parts of the country are represented. Three of the judges customari-

ly come from Quebec, three from Ontario, two from the four western provinces and one from the Atlantic provinces.

Split: In the United States, Reagan’s philosophy has little support in the Democrat-controlled Senate. As a result, the President is now having a difficult time getting his nominees confirmed to fill the vacancy created when Lewis F. Powell Jr. retired on June 26 at 79. The U.S. court is now split roughly into two groups: four conservatives and four liberals. It is the ninth justice who will have the swing vote, which could be the deciding one on major issues.

Circuit Judge Robert H. Bork, 60, was so right wing that from the morning of July 1, when Reagan first nominated him, to the afternoon of Oct. 23 when, after cruel and cutting hearings, the Senate voted 58 to 42 to reject him, the outcome was in doubt. The President’s next nominee, Judge Douglas H. Ginsburg, 41, was also solidly conservative. He might even have won Senate support if the fact that he had smoked marijuana had not come to light, causing him to withdraw. Reagan’s third candidate, Circuit Court Judge Anthony Kennedy, 51, a Harvard Law School graduate, is much less controversial and will probably win the nomination. A vote is likely late this month following hear-

ings that began in December. Until then, the court must continue to operate with one justice short.

In Canada, where the federal government appoints all the judges of the county and district courts, the provincial supreme courts and courts of appeal, the Federal Court and the Supreme Court of Canada, candidates must have had at least 10 years’ law practice. But in the United States, there is no law that requires judges even to be lawyers, although, in fact, all Supreme Court justices have been lawyers and most have previously served on federal or senior state courts. Since the creation of the Supreme Court almost 200 years ago, there have been only 103 justices.

Vote: The original U.S. court consisted of a chief justice and five associate justices. For the next 80 years the number of justices varied until, in 1869, Congress fixed the number at one chief justice and eight associates. As in Canada, the chief justice is the principal administrator of the court but, also as in Canada, he has only one vote, as do the other judges in deciding cases. The U.S. Supreme Court has what is known as “original jurisdiction”—which means that it can hear a case for the first time—in only a limited number of cases, including those involving foreign dignitaries and boundary disputes among states. All other cases reach the court on appeal from lower courts. The Supreme Court of Canada has no original jurisdiction except in “references”—questions of law referred to it for decision by the federal cabinet.

Of the several thousand American

cases filed annually, the U.S. court hears only about 150 compared to about 100 by the Canadian court. Most of the U.S. cases involve interpretation of the law, the intent of Congress or the determination of whether legislation or executive acts conform to the Constitution.

Rehnquist, 63, was sent to the court by Republican President Richard Nixon in 1971. On issues including abortion, affirmative action, school prayer, busing, presidential powers, the death penalty, obscenity, and crime and civil liberties, Rehnquist has been the most conservative member. He was appointed 16th chief justice of the United States in June, 1986, following the retirement of Warren Burger at 78.

The U.S. Supreme Court building is a massive marble structure in classic Corinthian style. Across the street from the Capitol building, its polished stone exudes an aura of efficiency. In their austere courtroom, the justices sit in a row before a high, red velvet drapery. The room is relatively small and churchy, with about 20 rows of seats for observers. The chief justice makes $150,000. Canada’s Chief Justice Dickson makes $147,700.

Modest: Justice Sandra Day O’Connor, 57, along with all of the other associates, makes $143,000 a year, about $7,000 more than Dickson’s colleagues. The chambers are similarly modest: small rooms, generally book-lined, with fireplaces (some of which are false fronts with no chimneys behind) and large pieces of polished wooden furniture. Said one clerk: “They are like lawyers’ offices looked 30 years ago.”

For most of the century, it has been an unwritten rule of the U.S. court that justices should lead restrained social lives because they should not discuss pending cases or public issues that may reach the court. In Washington, where politics and power are almost the only conversation, it makes contact dull and frustrating. The underground social life forced on the justices has increased the aura of secrecy that surrounds almost everything they do. No branch of government is more remote from public scrutiny. Justice O’Connor, appointed by Reagan in 1981 and the court’s only millionaire by virtue of Arizona ranch land inherited from her parents, has, according to court gossip, attracted attention for making herself the one exception to the “social underground” rule. She maintains that her more open lifestyle is good for the court. Meanwhile, observers in Washington continue to monitor the increasing emergence of “The Brethren’s” human side.

-WILLIAM LOWTHER in Washington