Groping for the middle way and posting multiple opinions
The Supreme Court's October-to-July year that ended last week will be best known for the race-yes, quotas-no, something-for-everybody decision that the Justices reached in Bakke. But the 1977-78 term should also be remembered for what Bakke reflects about the court itself: the notion of a conservative "Nixon court'' has by now become largely myth.
For a time, the Nixon court sobriquet seemed apt. From 1969 to 1971, four Nixon appointees joined the court—Chief Justice Warren Burger and Justices Harry Blackmun, William Rehnquist and Lewis Powell—and many observers expected them to reverse the trend set by the liberal Warren Court in the 1950s and '60s. Judicially activist, the Warren Court had frequently extended constitutional guarantees of free speech, equal protection and due process to safeguard individual rights, which usually meant those of the poor, minorities and criminal defendants. With the arrival of the Nixon appointees, the court was less concerned with the rights of the poor, and its decisions became more conservative. Deferential to law-and-order needs, the court was usually thought of as reluctant to tackle large issues, preferring to leave more decision-making to legislatures and local courts.
But in the past few years, conservative votes by the four-man Nixon bloc have become less certain. For the first time this year, splits in the Nixon bloc happened more often than not. Only 36% of the time did the quartet vote together, as against 67% last year and 73% two years ago. That does not mean that the court's political pendulum has swung back to the left. Rather, court watchers say, the court has become distinctly nonideological. "They have no overarching doctrine," says Virginia Law Professor A.E. Dick Howard. "They're taking cases as they come in pragmatic fashion." In the early '70s some expected Chief Justice Burger to rally the court around him in conservative restraint, just the way his predecessor, Earl Warren, galvanized the court to judicial activism. But this year Blackmun abandoned Burger 30% of the tune, Powell 26%. Together with Justices John Paul Stevens, Potter Stewart and Byron White, they form an uncertain and searching middle core, sometimes balancing, sometimes just unpredictable.
Burger and his closest ally, Rehnquist, now stand increasingly isolated on the right, while Justices Thurgood Marshall and William Brennan hang onto the Warren tradition on the left. "Fragmented moderation," Michigan Law Professor Vincent Blasi calls it. "Even when they get clear majorities," says Stanford Law Professor Gerald Gunther, "many different opinions come down. The Justices are tending to be loners, more isolated, less inclined to give and take."