Justice Right Face!

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The former Supreme Court Justice William Brennan used to tell his clerks, "Five votes can do anything around here." That was in the days when Brennan regularly stitched together a narrow liberal majority on a high bench that was delicately balanced between left and right. Those days are over. Five votes can still do anything. But now it's the court's increasingly assertive right wing that usually has them -- and sometimes more.

As the court heads toward the conclusion of its latest term, it has finally completed its decades-long transformation from the liberal bastion of former Chief Justice Earl Warren into an aggressively conservative body -- one that seems poised to alter some of the major rulings of the past. To fellow conservatives, the right-wing majority may look like the cavalry galloping to the rescue. Battered liberals are more apt to see them as the ravaging horsemen of the Apocalypse. The only question is how far they will go in undoing the liberal legacy in such areas as church-state relations, individual liberties, the rights of criminal defendants and abortion.

The new majority, led by Chief Justice William Rehnquist, has been building in slow motion. In the early 1970s, during Rehnquist's first few terms on what was still a liberal-leaning bench, he was so isolated that his clerks took to calling him the Lone Ranger. These days he no longer rides alone: he routinely joins a group that includes Reagan appointees Antonin Scalia, Anthony Kennedy, Sandra Day O'Connor and Bush appointee David Souter. Having written only a few rulings since joining the court this term, Souter remains something of an , enigma; yet he has clearly provided the right wing -- spearheaded by Rehnquist and Scalia -- with a crucial fifth vote in a number of important cases in which his predecessor Brennan would almost certainly have been on the opposing side.

Nor are the conservatives strictly limited to those five votes. Byron White is likely to join them on some cases, often those involving criminal law and police powers. Even John Paul Stevens supports them on many free-speech issues. That leaves Thurgood Marshall and Harry Blackmun, both 82, the oldest members of the court, as its only unbudging liberals. "The swing Justices no longer control the outcome," says Duke University law professor Walter Dellinger. "There's no swing Justice, really."

For years the court spared lawmakers the hard task of resolving difficult issues like abortion and school desegregation by imposing solutions in a constitutional wrapping. The new court is far more likely to toss such explosive matters back to state legislatures and Capitol Hill. "We're playing a rearguard action just trying to keep what we have," says California Democrat Don Edwards, who chairs the House Judiciary Subcommittee on Civil and Constitutional Rights. "Congress has to do the work we had counted on the court to do."