College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2001 Section 2: Direction of the Rehnquist Court Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 2: Direction of the Rehnquist Court" (2001). Supreme Court Preview. 133. https://scholarship.law.wm.edu/preview/133 Copyright c 2001 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview DIRECTION OF THE COURT In This Section: Unikey A lianx Keeps Cart Centenx Ciity Camisfor O'Camorand Bmer Joan Biskupic .............................................. 24 FL. Rxom DonamtedHig Cant's Tem HistoneRuing in PnsidentialRace Reloea DiziIom, New Bddres A nngJusties Joan Biskupic .......................................... 29 Laig Doun the Laz; Justias Rulai With Corfene Frxn Bush v Gore Onuan4 A ciisrmMarkaiPast Tenn Charles Lane .............................................. 33 High Cant's TennMuh Moe Than "Bush u Gore" Tony Mauro .............................................. 37 The Separationcfjustie and State Linda Greenhouse .......................................... 41 Disaxd A ctuall 7hy Think for Thendzs Richard W. Garnett ............................................................. 44 Wth CaerzatieEdge, HiOh Cant Cuts a Wide Szath Law Justics E nd TennHighihtel by Bush u Gore but Spenkled uith Far-Reabi DeiCiaSIn David G. Savage............................................47 In Year ofFlorida Vote, Supmn CantA ho Did Muah Other Wok Linda Greenhouse .......................................... 51 "RdjuistCant" Sets TermRaad CiJuticeLeans His Mark on Deaisom FrankJ. Murray ........................................ ..-.......... ............ 60 A Majority of Or Jeffrey Rosen .................................................... --. ........... 63 R ing to Caot Fa Yao tJustice A apts Being "Thorn in the Side ofThae Who Vily Ken Foskett ...................................................... Dizidal 77 ey Stand The High Cant and the Tnmph ofDiscord Linda Greenhouse.......................................... 8 7 The Futm f the Establishnent Clause Erwin Cheerinsky .......................................... 90 22 Be A dzisd- 'A darand"andAffinmtiw A ction Wil le Back on the Dodeet Stephen J. Werniel ...................................... 95 23 Unlikely Alliance Keeps Court Centered, Civility Counts for O'Connor and Breyer USA Today Thursday, June 21, 2001 Joan Biskupic A black-tie dinner at the University Club helps explain why the court, in cases here in February was to feature Supreme involving issues such as voting rights, Court Justice Sandra Day O'Connor as abortion and public funding of parochial keynote speaker, with the introduction schools, has adopted a more moderate by another conservative justice, Antonin tone than the stance its majority took in Scalia. Bush vs. Gore. But sometime between cocktails and the O'Connor remains part of the court's appetizer, the organizers realized that conservative wing, which includes Chief Scalia wasn't there. Because of a Justice William Rehnquist and Justices miscommunication, he had never been Anthony Kennedy, Clarence Thomas officially invited. Justice Stephen Breyer and Scalia. But she is most often the happened to be in attendance, and the court's swing vote and for years has been master of ceremonies sheepishly asked the most influential justice. him to fill in for Scalia. That often puts her in alignment with Before long, Breyer, a liberal who was Breyer, who often is more moderate than named to the court by Bill Clinton, was the court's other liberals: John Paul telling the audience about his warm Stevens, David Souter and Ruth Bader relationship with O'Connor, a Ronald Ginsburg. Reagan appointee. Calling O'Connor "a colleague and a friend," Breyer told of "He's the least liberal of the liberals, and their travels together to legal conferences she's the least conservative of the and spoke glowingly of her work on and conservatives," says Georgetown off the bench. University law professor Mark Tushnet, a former Supreme Court clerk who has For a few moments, the audience got a written several books about the court. glimpse of a friendship that has fostered a key alliance on a divided, conservative- Breyer has not replaced Kennedy, who led court that is still mindful of the like O'Connor has been a critical swing rancor it went through before its 5-4 vote. Those two Reagan appointees are ruling last December in the Florida on the same side about 90% of the time. election case. O'Connor and Breyer were But Breyer's alliance with O'Connor is on opposite sides in that ruling, which distinct because they are from opposite gave the presidency to George W. Bush. sides of the ideological divide and yet find common ground -- on and off the But the two justices have teamed up in bench - that often keeps the court from several major rulings over the past two tilting very far to the right. years. It is a developing partnership that 24 The Breyer-O'Connor alliance also but the nation" because the majority reflects other behind-the- scenes factors intervened in a "highly political matter" that help shape some of the decisions of that should have been left to Florida the current court, which is likely to wrap courts. up its term next week O'Connor and Breyer were plainly * Breyer's emergence as an effective disturbed by how the ruling conciliator, even though the 1994 deepened existing divisions among the appointee has the least tenure on the justices and made the court vulnerable to court and is in the liberal minority. accusations that it was just another political body. O'Connor's sometimes-cool relationship with the court's most Soon after the ruling, the two made a conservative justices, Scalia and Thomas. point of lunching together and talking to court clerks who were disenchanted by Even when Scalia and Thomas agree the decision. with O'Connor, they -- or she -- often will write a separate opinion using a Different styles, similar views different rationale. Scalia has belittled O'Connor's legal reasoning when More than their colleagues, O'Connor disagreeing with her. Breyer, meanwhile, and Breyer came to the bench with seems to go out of his way to be experience in building consensus -- respectful of O'Connor in his writings, O'Connor as a former Arizona state even when they disagree. senator and majority leader, Breyer as a former top aide to the * O'Connor and Breyer's strong desire -- Senate Judiciary Committee. shared by some other justices -- that Bush vs. Gore not continue to cast the Their styles are quite different: The tall, court as a panel driven by partisan stately O'Connor appears focused and politics. unflappable. The slightly rumpled Breyer exudes the air of an absent-minded Socially gregarious, O'Connor, 71, and professor (in fact, he taught at Harvard Breyer, 62, have tried to improve Law School). His self-deprecating personal relations among the justices manner contrasts with O'Connor's voice after the tumultuous ruling in December. of certainty. Among the least-known justices, Breyer often jokes about being In that decision, the court's mistaken for Souter. conservatives, including O'Connor, used an "equal protection of the law" rationale But when they join forces, O'Connor they had rejected in cases involving and Breyer forge rulings that reinforce minority rights to back Bush's claim that the court's center, typically settling a continuing to recount presidential ballots specific dispute at hand while leaving would be unconstitutional. The court broader legal issues to be resolved was widely accused of letting politics another day. dictate its ruling. It's an indication of how similarly they roles as jurists: Both see the Breyer said at the time, in dissent, that view their that is built and the ruling could "harm not just the court, law as something 25 defined incrementally, neither looks to Breyer wrote the court's opinion make sweeping legal pronouncements rejecting a complaint by white voters that unless a case absolutely demands it. the oddly shaped district was an unconstitutional racial gerrymander. It O'Connor said in a statement that Breyer was a precisely worded decision that "is exceedingly able and has a practical addressed O'Connor's worries about approach to problem-solving." Breyer racial preferences and quoted heavily echoes such sentiment when referring to from her earlier opinions on her. redistricting. Analysts say theirs is an approach that Voting rights and congressional can mute the influence of ideology in redistricting are among the most certain cases. contentious areas of the law, and such cases typically are decided by "I think Americans generally have more one vote: O'Connor's. The fact that she confidence in judges who do not reach didn't write an opinion indicated a level too broadly," says John Jeffries, dean of of confidence in Breyer's approach. His the University of Virginia law school. opinion showed that, as a practical matter, districts that consolidate blacks "Justice O'Connor is a bottom-up judge. or Hispanics to boost their political She comes to a decision by studying the power can be constitutional. facts of each case. And even though Justice Breyer is more of a systematic The ruling was reminiscent of one of thinker, his opinions are quite Breyer's opinions last year in which he particular." secured O'Connor's vote to strike down Nebraska's ban on a type of abortion Off the bench that involves removing an intact fetus. O'Connor and Breyer also have teamed His majority opinion borrowed many of up outside the court. O'Connor's words from previous abortion cases. It found Nebraska's ban They are strong supporters of the on such abortions unconstitutional American Bar Association's efforts to because the law lacked any "exception provide guidance to nations with for the preservation of the . health of evolving legal systems, such as the the mother" and imposed "an undue former states of the Soviet Union.