Supreme Court’s Drift to Right May Be at End

WASHINGTON —  The retirement of Justice Byron R. White confirms what the election of President Clinton suggested: The conservative tide at the Supreme Court has already reached its high water mark.

Now, Clinton must decide whether to select a true liberal to do battle with the court’s dominant conservatives, or to appoint a moderate who can help hold together a coalition of centrists. Some Administration lawyers have even predicted Clinton might do what no President has done in four decades by selecting a nationally prominent political figure to sit on the high court.

In any event, they say, the long conservative drift will have ended.

For the last 25 years, Republicans have appointed every new justice, and Presidents Ronald Reagan and George Bush in particular set forth a clear legal agenda for the Supreme Court. It called for overturning the Roe vs. Wade ruling that legalized abortion, a return to prayer in schools, the banning of “reverse discrimination” and carrying out of the death penalty for convicted murderers.

Last year, just when the court’s conservatives seemed to have their goal in sight, they fell one vote short of outright success on the abortion issue.

Four justices, including White, voted to overturn the abortion right entirely. But three other justices--all Reagan-Bush appointees--said they would uphold only limited regulations of the practice.

The same four conservatives voted to permit religious invocations in public schools, but the same Reagan-Bush appointees refused.

Three years before, the justices on a 5-4 vote had made it more difficult for public agencies to set aside contracts or grants for racial minorities.

At the time, Justice Antonin Scalia said the court should go further and outlaw any use of race in awarding contracts or jobs. With the arrival of Justice Clarence Thomas, Scalia appeared to have a five-member majority for that view, but that majority included Byron White.

Now, White is about to be replaced by a Clinton appointee, making it highly unlikely that the conservatives can still win dramatic victories.

“I think White’s departure signals the end of the conservative counterrevolution,” University of Virginia law professor A. E. Dick Howard said Saturday. “Of late, he’s been a dependable member of the conservative bloc, and losing him stops them in their tracks.”

Georgetown University law professor Louis M. Seidman agreed. “The right wing tide has reached its high point, and we’ll probably see some movement in the other direction,” he said.

But few legal experts foresee an abrupt shift to the left in the years ahead.

Much, of course, depends on how many vacancies become available and who Clinton selects. Justice Harry A. Blackmun, 84, is likely to retire within a year. Chief Justice William H. Rehnquist, 68, who in the past has said he would like to retire by age 70, and Justice John Paul Stevens, 72, also may step down during Clinton’s current term.

On Saturday morning, Clinton, Vice President Al Gore and several top aides got together for what was described as a “very preliminary, low-key meeting” to set up a process for screening court candidates. Aides said specific names were not discussed.

Earlier, however, several Administration lawyers said they would like to see the appointment of a prominent politician, such as New York Gov. Mario M. Cuomo or Senate Majority Leader George J. Mitchell (D-Me.), a former U.S. District Court judge.

In the first half of this century, the lawyers noted, the Supreme Court included nationally known figures, such as a former President, U.S. senators, state governors and former Cabinet secretaries.

For example, when California Gov. Earl Warren was named chief justice in 1953, his colleagues included three former U.S. senators, two former U.S. attorneys general and two other nationally known lawyers in Felix Frankfurter and William O. Douglas.

By contrast, the nominees of recent decades have been virtually unknown outside small circles of legal activists. No member of the current court has held an elective office, with the exception of Justice Sandra Day O’Connor, a former Arizona state senator.

But other legal activists are pressing the White House to expand the “diversity” of the court by adding another woman, another black or by choosing the first Latino member.

Clinton’s aides stressed that their search is just beginning, and a nomination may be weeks away.

Although the naming of a true liberal may please certain legal interest groups, some court experts say a moderate nominee may prove more effective.

“If he picks someone who is going to rail at the moderates, they will react by moving right,” said Washington attorney Carter G. Phillips. “Extremist views on the right helped push them to the left. Now, if they hear extreme views on the left, they will move the other way.”

He was referring to Justices O’Connor, Anthony M. Kennedy and David H. Souter, the moderate conservatives who now control the outcome in most cases.

Last year, these three formed an alliance to blunt the conservative forces, and all three have indicated they want to avoid dramatic departures from the legal status quo.

Clinton has said little about what he wants in a Supreme Court nominee, although he has repeatedly stressed his belief in “the constitutional right to privacy.” This phrase is often seen as another way of voicing support for a woman’s right to abortion, but this doctrine may play a key role in the years ahead on issues such the right to die and gay rights.

White vehemently opposed the notion of a general “right to privacy.” He wrote the 5-4 majority opinion in 1986 rejecting the claim that the Constitution protected the privacy of homosexuals against state sodomy laws. In 1990, he joined another 5-4 majority that rejected a right-to-die claim filed by the parents of a comatose Missouri woman.

Howard predicted that those decisions may well be reversed in the years ahead with several Clinton appointees.

“I think they will give the whole ‘zone of privacy’ doctrine a more expansive definition,” he said.

One area where the conservatives largely succeeded is in criminal law and the death penalty. On Thursday evening, for example, a Virginia Death Row inmate was executed quietly after the justices rejected his final appeal on a 7-2 vote. The convict, Syvasky Poyner, was the 195th person put to death since the justices restored capital punishment in 1976.

In recent years, the court has given police and prosecutors more authority to pursue the war on drugs. They have upheld sobriety roadblocks, airport searches of those who fit a “drug courier profile,” routine drug testing of public employees and life prison sentences for those who possess large amounts of narcotics.

Typically, those decisions have been endorsed by a solid majority of the court, a trend unlikely to change with one or two Clinton nominees. The President supports capital punishment, for example.

As Howard said, “I think you can safely predict a Clinton nominee will be pro-choice on abortion and pro-First Amendment, but I wouldn’t predict you’ll see someone who is pro-defendant.”