Longtime Justices Hold Sway in Opposite Camps

WASHINGTON â€”  At the Supreme Court, long membership has its rewards.

Since the mid-1970s, William H. Rehnquist and John Paul Stevens have staked out opposing views on many of the biggest issues that come before the Supreme Court: religion, the death penalty, civil rights, abortion, crime and punishment, and states’ rights.

Now, Rehnquist, 77, and Stevens, 82, are enjoying the peaks of their influence, swaying the court in the term that ended last week to some of their most cherished goals. Speaking first in the justices’ private deliberations, the chief justice and the senior justice set the tone for debate and often won the day.

The conservative chief justice, Rehnquist, gained major victories on school vouchers, student drug testing and states’ rights.

But Stevens, the leader of the loyal and liberal opposition, had a surprisingly strong year, winning majorities to outlaw executions for the mentally retarded; to require that juries, not judges, decide death sentences; to uphold temporary bans on development; to give patients fighting their HMOs a right to a second opinion from outside doctors; and to allow federal civil rights lawyers to sue employers over discrimination, even when the workers had signed an arbitration agreement.

Some Unusual Defeats

Stevens did so well this term that Rehnquist suffered a few unaccustomed defeats. He was the only justice who dissented in both death penalty cases announced a week ago, and he dissented alone when Stevens spoke for the court in saying the government cannot require a permit from religious or political activists before they go door-to-door to spread their message.

Still, the school voucher decision announced Thursday was arguably the year’s most significant ruling, and it was a personal victory for Rehnquist, who has long championed choice in schools.

In 1973, he was the rookie conservative on the high court when his colleagues struck down a New York state tuition tax credit that helped parents send their children to private and parochial schools.

Rehnquist disagreed profoundly. He thought Thomas Jefferson’s comment that the Constitution erected a “wall of separation between church and state� was a “misleading metaphor� and should be scrapped, as he wrote later. He believed the ban on laws “respecting an establishment of religion� meant only that the government cannot fund a church or show favoritism for a particular religion.

He described the New York law as one of “benevolent neutrality� that preserved a true choice between private and public schools. It was not an effort to promote religion, he said.

It took 29 years, but Rehnquist mustered a 5-4 majority last week to overturn that decision and to uphold the principle that the government can give subsidies to parents who send their children to parochial schools.

He described Ohio’s voucher law as “a neutral program of ... true private choice,� not a means to promote religion.

Notre Dame University law professor Richard Garnett, a former Rehnquist clerk, called the voucher ruling “the capstone of the chief’s slow but steady effort to rehabilitate the law in this area. He came on the court at a time when he thought it was far too hostile and suspicious of religion. It’s taken a long time, but he’s patiently stuck with it.�

Until last week, the law said government could not create programs that had the “effect� of funneling tax money to religious institutions. Under this rule, President Bush’s “faith-based initiative� stood in doubt, since he wants to use government money to support religious groups that, for example, provide counseling for prisoners, drug abusers and troubled teens.

But Rehnquist scrapped the so-called effects test. So long as the government has a valid public purpose, such as improving education for low-income children, it can send tax money flowing to people who in turn will give it to church schools. His opinion removes most of the constitutional obstacles to Bush’s broader agenda.

Stevens, meanwhile, adheres to the strict separation of church and state. He believes the Constitution requires no tax money be spent for “religious indoctrination,� as he put it last week.

While Rehnquist has been winning in the aid-to-parochial schools cases, Stevens has prevailed when the issue has been school-sponsored prayers in public schools.

Two years ago, Stevens spoke for the court in striking down a Texas school board’s policy of choosing a student to deliver a prayer over the public address system at football games. Students may pray on their own, but school officials have no business sponsoring group prayers, he said.

In dissent, Rehnquist snapped that the Stevens opinion “bristles with hostility to all things religious in public life.�

Beyond the religious wars, the two have disagreed repeatedly on the death penalty.

In 1972, Rehnquist dissented when a liberal majority declared capital punishment unconstitutional. Four years later, Stevens, a new appointee of President Ford, joined Rehnquist in voting to permit the death penalty again.

But over the last two decades, the two have taken opposite courses. The chief justice is the most fervent supporter of the death penalty, and he has moved quickly to reverse lower courts that have stood in the way of executions.

Death Penalty Curbs

Stevens has voiced growing dismay over some aspects of how the death penalty is administered. He sharply dissented in 1989 when the court upheld executions for the mentally retarded. He was convinced after reading extensively on the issue that people who are mentally retarded lack an ability to control their impulses and learn from mistakes, and, therefore, are not the most culpable of criminals.

Stevens, who spends part of the winter in Florida, also spoke out in opposition in cases where trial judges in Florida and Alabama had ignored a jury’s recommendation and imposed a death sentence.

This month, Stevens put together majorities to reverse both policies on the death penalty.

Stevens won over conservative Justices Antonin Scalia and Clarence Thomas to the principle that juries must decide ultimately who will die.

Two other Rehnquist allies, Justices Sandra Day O’Connor and Anthony M. Kennedy, joined the Stevens opinion outlawing executions of the retarded.

Rehnquist was the lone dissenter on both issues.

Since the court holds its debate behind closed doors, it is hard to assess which justices have the most influence. But some clearly carry more sway than others.

Rehnquist’s predecessor, Chief Justice Warren E. Burger, was seen as pompous and at times scatter-brained. Justice Byron White, who served 31 years, was smart and hard-driving, but he saw his job as deciding cases, not writing principles of law.

In contrast, Rehnquist had a clear, conservative agenda from the start, and he has never wavered. He is affable, organized and well prepared.

In the conferences, the justices say he lays out his views clearly and wastes no time on wandering discussions.

He is also remarkably predictable. Rehnquist supports states’ rights over federal power, sides with the police over claims from criminal defendants, and favors property rights over environmental concerns. He has steadily opposed the right to abortion, affirmative action and most claims of job discrimination.

In the war on terrorism, the Bush administration can count on Rehnquist to support the government. The first signal came Friday, when the high court issued an order to close all immigration hearings in cases that the Justice Department says involve terrorism.

Stevens is not a conventional liberal in the mold of Justices William J. Brennan and Thurgood Marshall. But after they retired in the early 1990s, Stevens became an outspoken foe of what he sees as conservative activism led by the chief justice.

In a series of 5-4 rulings, the Rehnquist majority has shielded states from the federal job-bias law and has struck down all or part of a series of laws enacted during the Clinton administration, such as the Brady Act restricting handgun purchases and the Violence Against Women Act, which allowed victims of sexual assaults to sue their attackers.

On each occasion, Stevens strongly dissented and said the court should uphold the acts of Congress. So far, he has been unable to win over any of Rehnquist’s allies on the states’ rights issue.

He had more success in limiting abusive practices by police officers and prison guards. On the court’s final day, Stevens spoke for the court in ruling that two Alabama prison guards can be sued for having chained an inmate to a metal pole and leaving him in the hot sun for seven hours without water and a bathroom break. Rehnquist, Scalia and Thomas dissented.

These same constitutional issues will be joined in the fall when the Supreme Court returns to work.

California’s “three strikes� law is being challenged as cruel and unusual punishment in the case of a shoplifter who was sentenced to 50 years. The court will also hear a states’ rights challenge to the Clinton-sponsored law that gives workers a right to 12 weeks of unpaid leave for family emergencies.

Rehnquist and Stevens say they will be back for another term, and count on them to be on opposite sides of both cases.