The Court Reassembled

By Alain L. Sanders

"Everybody was in a jolly mood." Thus a court insider described the atmosphere as the Rehnquist Court went to work in closed session for the first time last week. With William Rehnquist newly sworn as its Chief and Antonin Scalia the newest Associate Justice, the reassembled U.S. Supreme Court began going through the summer's accumulation of new cases. The transition has proceeded smoothly. Former Chief Justice Warren Burger moved out of his chambers early so they could be repainted, and most of Rehnquist's pictures and effects are now tidily in place. Burger retains a smaller office, for retired Justices, but he is devoting full time to planning for the Constitution's bicentennial next year. Last week, quickly taking advantage of his new freedom from court duties, he was promoting the framers' achievement at a Disney World celebration. "For the next few years," he said, "we hope to tell this story to every school in America."

Under Rehnquist, the court already seems friendlier and more collegial in tone. Many at the court considered the former Chief manipulative, believing, for example, that he assigned opinions in dreary cases to Justices as punishment. Rehnquist is less formal and bureaucratic than his predecessor, and "doesn't take himself that seriously," says a former clerk. In the conferences, where Justices announce their intended votes and reasons, the Chief describes each case briefly and gives his views first. Burger sometimes rambled on and lost his place. Rehnquist is expected to state the issues more sharply and succinctly. The discussion will now end on a strong intellectual conservative note as well: as the junior member, Scalia speaks the last word. The new dynamics will be at work this week, when, on the first Monday of October, the Justices formally open the term. Oral arguments are scheduled Wednesday in one of the most difficult cases they face. Feminists are split over a 1978 California law allowing a pregnant worker to take up to four months of unpaid leave. The Justice Department has joined a Los Angeles bank in claiming that the statute runs afoul of federal laws barring discrimination based on pregnancy. Kathy Bonk of the NOW Legal Defense and Education Fund, which also opposes the state rule, argues, "When pregnant women are put in special categories, they are denied benefits and paid less." But Christine Littleton, who teaches law at UCLA, retorts, "Inadequate leave policy means that women who choose to become parents lose their jobs, while men do not."

Questions of gender will also arise later, when the court considers head on, for the first time, whether affirmative action is appropriate to remedy employment discrimination against women. In addition, the Justices will review a court-ordered promotion plan for blacks imposed on Alabama state troopers. The cases will be closely watched because the high bench has yet to define completely its views on affirmative action. "The permissible scope is unclear," says Yale Law Professor Paul Gewirtz. "The cases are being decided one by one." In a major church-state dispute, the court will decide whether Louisiana violated the bar on establishment of religion by requiring the presentation of creationism in schools teaching evolution. And in a case that could have major implications for AIDS victims, the court will determine if a federal law banning discrimination against the handicapped protects people with contagious diseases.

Opponents of the death penalty will plead what may be their last major argument, seeking to convince the court that a system disproportionately imposing death on killers of whites is unconstitutionally "arbitrary and capricious." In a number of other criminal cases, prosecutors will continue to press the Justices for ever larger exceptions to the rule that makes improperly obtained evidence inadmissible at a suspect's trial. For example, they will argue that heroin seized with a warrant should not be suppressed even if police mistakenly search the wrong apartment.

The issues thus remain as interesting, as important and as potentially divisive as ever. Despite the changes in style, it is uncertain whether the Rehnquist Court will be able to provide clearer guidance than the Burger Court or reduce the flood of contending opinions, concurrences and dissents that poured out under the former Chief. For the general public, however, a valuable opportunity to look more closely at the Justices in action may be near. Unlike his predecessor, Rehnquist has agreed to study the possibility of letting TV cameras into the Marble Palace's courtroom.

With reporting by Anne Constable/Washington