Will the Court Move Right? It Already Has
By Linda Greenhouse
New York Times
WASHINGTON In the intense focus on the Supreme Court's future, with crucial decisions expected this week and speculation at a peak over whether new appointments will soon drive the court further to the right, it is easy to overlook an important element of the court's present: how conservative it is right now.
A prisoners' rights case made that point eloquently last week, not so much by what the court said as by what it didn't say in a 9-to-0 decision upholding the Michigan prison system's restrictions on the right of inmates to have visitors.
The regulations include limits on visits by minor children as well as a minimum two-year ban on any visits by family members to an inmate who has committed two drug infractions. Two lower federal courts had declared the rules unconstitutional "below minimum standards of decency owed by a civilized society to those who it has incarcerated," as the United States Court of Appeals for the Sixth Circuit put it.
Briefs asking the Supreme Court to affirm that ruling were filed by dozens of groups, including mental health professionals, an American Bar Association panel, the National Council on Crime and Delinquency, and those working on behalf of the 1.5 million children with a parent in prison. The briefs argued for the utility, if not the humanity, of fostering connections to family and the outside world for those in prison.
No Supreme Court justice was persuaded. "The challenged regulations bear a rational relation to legitimate penological interests," Justice Anthony M. Kennedy wrote for seven members of the court. He noted that inmates barred from seeing relatives through a glass panel could, after all, still write or call. While illiteracy, expense or the age of young children might make those alternatives problematic, "alternatives to visitation need not be ideal," Justice Kennedy said; "they need only be available."
In a separate concurring opinion, Justices Clarence Thomas and Antonin Scalia disputed the premise that the Constitution had anything at all to say about visitation rights or conditions of confinement in general.
The point is not that the majority opinion in Overton v. Bazzetta was outrageous or unreasonable; given the court's precedents, it was foreseeable and defensible. (The separate opinion is another story.) What was notable was the absence of a contrary voice, the kind that would once have been raised if usually in dissent by William J. Brennan Jr. or Thurgood Marshall, both of whom retired in the early 1990's.
"Brennan and Marshall would have been indignant," said Stephen J. Wermiel, a law professor at American University who is writing an authorized biography of Justice Brennan. "It's not so much the lack of compassion, but the fact that the court gave no sign that this was a place that might have been appropriate for compassion."
Mark Tushnet, a professor at Georgetown University Law Center and a biographer of Thurgood Marshall, agreed. "It's not the result or the unanimous vote that is the most striking, but the absence of a liberal articulation" and framing of the issue.
There are vigorous debates on the court, of course, and closely divided decisions are common. Earlier this term, the court split along predictable 5-to-4 lines in upholding California's "three strikes" law that has imposed 25- to 50-year sentences on hundreds of defendants whose third offense was a minor property crime. And conservative scholars dispute whether "conservative" is the right word for a court that, while not extending many liberal Warren Court precedents, has not overruled many either.
"But there are some issues that have simply dropped out of contention," Professor Tushnet said. The death penalty is one; no justice now holds that capital punishment is unconstitutional, as did Justices Brennan, Marshall and, briefly before his retirement in 1994, Harry A. Blackmun.
"It's definitely a conservative court in the criminal law area," reflecting a broad social consensus, said John O. McGinnis, a law professor at Northwestern University. But he added that the court's conservatism is not uniform, noting that the court is expected to overturn a Texas sodomy law soon.
"The real point is not that the court is conservative, but that the spectrum of views on the court today represents a particular range, from ardent conservative to central or moderate liberal," said Paul Gewirtz, a professor at Yale Law School. "There's something to be said for a court of centrists, but that's not what we have. One end of the spectrum is represented, and not the other."
Among legal academics, conservatives and liberals have their mirror-imaged constitutional wish lists. Conservatives call theirs the "Constitution in exile," a vision that includes state sovereignty, limited national power and strong protection for private property.
Liberals refer to the "shadow Constitution," under which the government has affirmative obligations to alleviate inequality, protect people from harm that results only indirectly from official action, and surround criminal defendants and prisoners with a range of safeguards.
One salient difference between the two visions is that the "Constitution in exile" actually existed for many years, before the New Deal court ratified a 20th-century vision of national power. The Rehnquist Court's federalism revolution is now breathing new life into that pre-New Deal idea.
By contrast, the "shadow Constitution," most of it at least, was never achieved, not even under the Warren Court. It has lived only between the covers of law reviews and in the occasional dissenting opinion from a Justice Brennan, Marshall or Blackmun. With their traces largely washed away, it is tempting to dismiss those efforts as ineffectual.
But even hopeless dissents serve a function, Professor Gewirtz said, in "giving the public the confidence that the majority has considered the full range of arguments and has had to answer them."