Court at the Crossroads

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Justices, whatever their political leanings, are supposed to prize continuity and predictability. "The most important thing we do," wrote Justice Brandeis half a century ago, "is not doing." Brandeis believed that the court should apply established legal principles to the facts of the case at hand, and not reach out to make new law. Conservative Justices at least pay lip service to this ideal. Burger, O'Connor and Rehnquist, for instance, preach adherence to federalism, arguing that the federal courts should try to avoid overruling state courts and legislatures.

When it suits them, however, conservatives and liberals alike do not hesitate to ignore the lofty goal of judicial restraint. Last August, Stevens publicly attacked his colleagues for overstepping their authority. The court "leaped" and "grasped" and "went out of its way" to write new law, he told an American Bar Association audience in Chicago. He noted pointedly that "members of the court who are often described as 'conservative' were casting judicial restraint aside in an effort to move the law to the right."

Since much of what the court has done in the past 40 years is decidedly liberal, the key question now is whether the court will be willing to overrule itself. The high court is historically loath to reverse precedent. The court authority depends on respect for its rulings; the Justices know that nothing makes them seem more fallible than second-guessing their own judgments. "The one thing the court really cares about is its own power," says Chicago's Hutchinson.

At the same time, the court is not insensitive to the public mood. There are signs that several of the Justices feel they have gone too far beyond the national consensus in some areas and need to retrench. Formerly controversial breakthroughs, such as Brown vs. Board of Education and Miranda, have withstood the clamor and gained acceptance. Others, however, particularly those involving school prayer, abortion, affirmative action and search and seizure, still stir passion. "It wouldn't surprise me if Justice White, for example, now feels those decisions backfired and the court should back off," says Columbia's Blasi. He suspects that both White and Powell, two men of the center, are "very, very worried over the idea of Supreme Court decisions being portrayed as election issues."

Precedent need not prevent change. "The Justices know they can undermine just as effectively by interpretation as by actual reversal," says Sidney Zion, a liberal court commentator. The signals sent to the lower courts by the language and tone of court opinions are as important as rulings, which are often narrowly limited to the facts of a case. On the exclusionary rule, for instance, "the Supreme Court needs to hold back the natural instincts of lower-court judges who want to admit all incriminating evidence," says Kamisar.

Of course, the lower federal courts may choose to buck the Supreme Court. Lower-court judges have considerable discretion to shape remedies in civil rights cases: busing plans, affirmative action, even taking over the management of state prisons and mental institutions. Courts of appeal, including the Supreme Court, generally do not second-guess findings of fact by trial-court judges. "A clever