ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, June 23, 1996 TAG: 9606240118
SECTION: HORIZON PAGE: 1 EDITION: METRO
DATELINE: WASHINGTON
SOURCE: DAVID G. SAVAGE LOS ANGELES TIMES
When Chief Justice Warren Burger told President Ronald Reagan in 1986 that he planned to retire from the Supreme Court, he handed Reagan's aides exactly the opening they had hoped for.
Reagan's agenda on abortion, school prayer and affirmative action was then blocked in Congress, and Burger's resignation gave the White House a chance to break what they saw as the liberals' lock on constitutional law.
So 10 years ago last week, Reagan walked into the White House media room at midday to announce a profound shake-up of the Supreme Court - a switch that had been engineered secretly by a few of his top legal advisers.
In a judicial version of baseball's double steal, Reagan moved up staunch conservative William H. Rehnquist to be chief justice and selected conservative legal star Antonin Scalia to fill his seat.
In a decade together on the bench, Rehnquist and Scalia have lived up to their advance billing: a dream team for conservatives and a nightmare for liberals. However, the Rehnquist court has compiled only a mixed record.
On the key issues of dispute - crime, abortion, religion and civil rights - the court has indeed shifted to the right. But the landmark rulings of the court's liberal era still stand: the Roe vs. Wade decision establishing a right to abortion, the Miranda ruling requiring warnings by police and the bans on public school prayers from the early 1960s.
Moreover, the high court recently dealt two blows to conservative causes. Last year the court struck down term limits for members of Congress, and this year it invalidated a Colorado voter initiative that barred gays and lesbians from winning legal protections against bias.
Court scholars are divided over how to assess the Rehnquist court. Some see a continuation of a gradual, 25-year move away from the liberal activism of the Earl Warren court. Others see Rehnquist leading a hard move to the right, with an activist conservative court fueling an assault on civil rights and individual liberties.
Stanford law professor Kathleen Sullivan says she is in the first camp. ``I think what's most remarkable is what hasn't happened,'' she said. ``It's the counter-revolution that wasn't, Part 2.''
Court historian Bernard Schwartz and University of Southern California law professor Erwin Chemerinsky put themselves in the second camp.
Rehnquist ``has been on a mission to undo the work of the Warren court, and I think he has accomplished a great deal from his point of view,'' said Schwartz, who is now teaching at the University of Tulsa.
``We tend to be deceived by what didn't happen,'' Chemerinsky added. ``Overall, there has been dramatic move to the right. Look at school desegregation, prisoners' rights, voting rights, habeas corpus, religion, equal protection. There have been important changes across the board.''
The right to abortion survived on a 5-4 vote in 1992, and term limits were struck down by the same margin last year.
Those close votes suggest a miscalculation 10 years ago may have cost Reagan and his aides a chance to create a solidly conservative court. The question then was whether to nominate Judge Robert H. Bork, a prominent conservative, or the younger, lesser-known Scalia.
``We settled pretty quickly on Rehnquist as the new chief, but there was a spirited debate over Bork and Scalia,'' recalled Peter Wallison, then-White House counsel.
None of three candidates was a friend of Reagan's, or even a friend of a friend. But Reagan had made clear what kind of person he sought for the Supreme Court.
``He wanted people whose judicial philosophy was known and could be relied upon,'' Wallison said. That meant veteran judges, not politicians.
At the Justice Department, Attorney General Edwin Meese and his top advisers favored the younger, less controversial Scalia. Other aides thought Bork might be the better choice. The Republicans had control of the Senate in 1986 and would approve both nominations. Scalia could come later, they said.
In the end, Reagan made the choice, but on a somewhat different basis. ``When the president learned Nino Scalia would be the first Italian-American justice, it was over,'' Wallison recalled.
Scalia got the nomination, charmed the Senate Judiciary Committee and won a unanimous confirmation.
A year later, it was a different story when Justice Lewis Powell retired and Reagan picked Bork to replace him. In the Senate, Bork faced hostile questioning about his many writings. The political climate had changed too, since the Democrats had retaken control of the Senate.
When Bork's nomination went down in flames, Reagan settled for a moderate - Justice Anthony M. Kennedy from Sacramento, Calif. Kennedy in turn has cast the deciding votes to preserve Roe vs. Wade, to maintain the strict ban on prayer in schools and to invalidate term limits - all instances where Bork almost surely would have voted the opposite way.
Rehnquist has won high marks as chief justice. Even the liberal justices who invariably disagreed with him - including William J. Brennan and the late Thurgood Marshall - praised him as a superb chief justice and a good friend.
Unlike Burger, Rehnquist has a clear and consistent legal philosophy. He believes the Constitution left nearly all power in the hands of the people and their elected representatives.
Where the liberals vote to uphold the rights of the individual challenging the government, Rehnquist votes to uphold the wishes of the majority.
For example, he has steadily voted to uphold state abortion laws - not because he is personally opposed to abortion but rather because he thinks those decisions should be made by elected legislators, not federal judges.
Despite his strong views, Rehnquist seems unperturbed when his colleagues disagree. ``He never holds a grudge,'' one justice commented.
On many a day, he strolls alone around the court building to loosen his perpetually sore back. But unlike other high officials in Washington, he appears to expect no special deference. For example, on a day when a dozen visitors slowly shuffled through a metal detector at the court's side entrance, the chief justice patiently waited his turn in line to enter the building.
In late September, he underwent back surgery to ease his pain. Since then, some reports have speculated he would retire shortly, perhaps giving a re-elected President Clinton a chance to tip the court back toward the left.
But Rehnquist says his back is feeling better these days and, at age 71, he has no plans to retire soon.
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