Clinton's Justices Pave Supreme Court's Middle Road with Another Term under Their Belts, Two Newest Jurists Brake Court's Rightward Momentum

Article excerpt

Of the nine justices on the United States Supreme Court, Republican presidents named seven and President Clinton - the first Democrat in the Oval Office since 1980 - named two.

Now, as history begins to define Mr. Clinton's legacy, his appointments of Justices Ruth Bader Ginsburg and Stephen Breyer may win a spot near the top of his achievement list.

Without doubt, the Clinton appointees are acting as the brake on a court that was moving rapidly toward cultural conservatism and limits on individual rights, say many court observers. Especially when the justices cannot reach consensus, as is often the case, the two newest members are steering the court in a more mainstream direction.

"Without {Justices} Ginsburg and Breyer, you have a radically different jurisprudence on the court," says David O'Brien, who publishes an annual Supreme Court review. "Voting rights and affirmative action are overturned completely. More acts of Congress are overturned. You would see a reversal of Roe v. Wade {affirming a woman's right to abortion}."

Other cases that might have turned out differently include one from the Virginia Military Institute (VMI), in which the court struck down all-male public colleges. The two newcomers frown on the death penalty, but have not tried to abolish it. They favor drawing voter districts in a way that considers race, but not ardently.

As Ginsburg begins her sixth year and Breyer his fifth on the Supreme Court, the pair is helping to shape a strong moderate wing. Moreover, with an impeccable civility and quiet demeanor, they are tempering a body that had been riven with ideological fissures and personal antipathy, sources close to the court say.

Of the two, the biggest surprise may be Breyer, a federal judge and Harvard professor who joined the court in 1994. Breyer was early labeled a gray legal technocrat. Yet his ringing dissent in the recent line-item-veto case and his role as lead dissenter in last year's epic term show him emerging as a questioner of states' rights and "original intent" - the leading vision of jurisprudence coming from the conservative wing.

In dissenting with the majority decision to strike down the presidential line-item veto, Breyer contrasts the size of the US population, budget, and government in 1789 with the vastly larger conditions today. Whereas the majority held that the new presidential power violated the Constitution's "separation of powers," Breyer argues that the literal reading should not prevail and that the court should remember the "genius of the Framers' pragmatic vision ... in cases that find constitutional room for necessary ... innovation." The Constitution, he says, was framed to be an evolving document.

Ginsburg, confirmed in 1993, is a steady moderate whose main impact is in gender issues. …


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