Un-packing the courts.

UN-PACKING THE COURTS

THE FEDERAL JUDICIARY, a liberal stronghold since the New Deal, may soon come under conservative control. When it does, the highly touted "Reagan Revolution" will become a fact.

True, Franklin Roosevelt appointed nine Supreme Court Justices; Ronald Reagan has appointed only one. But five of the current Justices were born before 1909. William Brennan, 79, was talking about retiring even before Reagan took office; he and the infirm Thurgood Marshall, 77,would probably have stepped down by now except that it would have been Reagan naming their successors. Chief Justice Warren Burger, 78, is rumored to be planning to retire next term. Lewis Powell, 78, is battling cancer. In fact, the most actuarially hopeful of the current Justices, Sandra Day O'Connor, 56, and William Rehnquist, 61, are reliably conservative.

Meanwhile, Reagan has named approximately 240 judges to lower federal courts, approaching Jimmy Carter's record 258 with nearly three years remaining in his second term. (There are now approximately 740 federal judgeships in all.)

Moreover, there is plenty of high-powered talent waiting in the wings. Robert Bork, of the U.S. Court of Appeals for the District of Columbia, is the most likely candidate for the next High Court vacancy, and his is a legal mind powerful enough to change the course of debate. Much the same can be said of other frequently mentioned prospects, such as Antonin Scalia and Richard Posner.

What is at stake is the philosophy the federal judiciary will operate under for the next generation. Change from the liberal activism of the Fifties and Sixties has been long in coming. Richard Nixon promised strict-constructionists (and no doubt meant it), but he wound up giving us Warren Burger, Harry Blackmun, and Lewis Powell. And as Terry Eastland, now a special assistant to Attorney General Edwin Messe III, has observed, "Not only has the Burger Court failed to overturn, or even to modify substantially, the principal decisions of the Warren Court. It has also compiled a record of judicial activism that rivals its predecessor's." The Court's abortion ruling in Roe v. Wade is only the most flagrant example; blackmun, who wrote the majority opinion, now defends it, with a fine incomprehension of Nixon's promise (not to mention his own institutional role), as a milestone in "the emancipation of women."

MEESE, who is in charge of judicial selection, made the philosophical stakes explicit last July when he told the American Bar Association that the Reagan Administration favors a "jurisprudence of original intent." The point would hardly seem controversial--Bork says flatly that "original intent is the only legitimate basis for constitutional decision"--but Meese's speech set off a chain reaction of violent argument.

The most important event in the controversy, beyond question, was Justice Brennan's speech at Georgetown University in October, a thinly veiled attack on Meese's seemingly innocuous doctrine.

Brennan pooh-poohed the very idea that "original intent" is discoverable. "All too often," the historical evidence is "sparse and ambiguous." (So much for that.) Besides, the "contours" of the Constitution's framing the are now "anachronistic." We must apply its "overarching" and "fundamental principles" to new circumstances in the light of "social progress."

If "original intent" is to elusive, how can "fundamental principles" be discovered? The question didn't occur to Brennan: For him it was plain that the Constitution offers a "timeless ... vision of human dignity." For "the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs." It is "a sublime oration [!] on the dignity of man, a bold commitment by a people to the ideal of libertarian dignity protected through law."

Forgetting his own premise, Brennan even discovered a new version of original intent: "Our Constitution was not intended to preserve a pre-existing society but to make a new one." Moreover, "the demands of human dignity will never cease to evolve." Overworking the principle of "adaptability," Brennan even inserted an argument against capital punishment, to which he is absolutely opposed--a position which (as he noted) also puts him in opposition to most living Americans, presumably because he has evolved a bit faster than most of us (though he made a little bow to the idea that Justices mustn't rule "according to their personal moral predilections").

Brennan's speech was a major event --the belated manifesto, as it were, of the Warren Court. Meese has smoked him out. Various liberal pundits, editorial writers, and constitutional shysters rushed to Brennan's support. Yes, they agreed, "original intent" was lost in the fogs of antiquity--and anyway, who needs it?

But without realizing it, they were only exposing themselves. The more doubtful the liberals were about what the Framers intended, it appeared, the more certain they were about what the Constitution mandated for our time. All along, they had been appealing to our reverence for the Constitution only to enlist our unthinking deference to its current interpreters on the High Court--who "interpreted" it on, say, capital punishment according to what some would call their personal moral predilections, even if Brennan terms it a constitutional "vision of human dignity." While finding the letter of the Constitution a bit blurry, the liberals had a pipeline to the Framers' spirit.

Conservatives quickly weighed in with annihilating counter-arguments. Bork observed, in a speech of his own, that "the words [of a given law or the Constitution] constrain judgment. They control judges every bit as much as they control legislators, executives, and citizens." He went on: "Obviously, values and principles can be stated at different levels of abstraction. In stating the value that is to be protected, the judge must not state it with so much generality that he transforms it." Case in point: the "right of privacy" that the Court in 1965 discovered somewhere in a "penumbra" of the Bill of Rights. "Since there is no constitutional text or history to define the right, privacy becomes an unstructured source of judicial power."

Exactly: power. "Not surprisingly," Eastland chimed in, "those who reject a jurisprudence of original intention still admire judicial power."

Others asked why, if Brennan is right, we need a written Constitution at all. Lino Graglia, a Reagan appointee (not yet confirmed, and fiercely opposed by liberals) to the Fifth Circuit Court of Appeals, remarked that Brennan's Constitution seemed to be written in "disappearing ink." Walter Berns pointed out that "when time' and not the constitutional text provides the standard by which judicial decisions are to be measured, the inevitable consequence is a Constitution that can be interpreted but not misinterpreted, construed but not misconstrued. Why, then, bother with a Constitution? Of what use is it?" Raoul Berger noted that if the Fourteenth Amendment had the broad meaning Brennan reads into it, the Fifteenth Amendment, enfranchising former slaves, would have been redundant.

By the new year there wasn't much left of Brennan's thesis, and the liberals were hanging on for dear life. Taking a leaf from Norman Lear, Laurence H. Tribe of Harvard accused Meese of taking an approach that was "profoundly un-American." A liberal stronghold is indeed menaced.

Other voices were heard. Michael Kinsley, editor of The New Republic, recalled his little-heeded warning to fellow liberals that they had relied too long on judicial activism to enact their agenda, and warned that activism might now become a conservative weapon. But Bruce Fein, formerly of the Justice Department, says that liberals should rest assured that judicial restraint would restrain conservatives too; and indeed Meese has said that under the principle of federalism, the states would be able to pass strict gun-control laws and permissive abortion laws.

But a Reagan Court would certainly be active, if not activist. Grover Rees III, a special counsel to Meese, bridles at the very word "activism." He says it has become a meaningless term of abuse: A Court can reverse earlier Court rulings without being "activist," in the sense of imposing a social agenda under color of interpreting the Constitution.

No doubt this is true. IF earlier rulings have been wrong, a new Court should corret them. And it doesn't take necromancy to determine "original intent": The meaning of the Constitution is not to be sought in the subjective motives or secret diaries of James Madison, but in the publicly understood meaning accepted on all sides by those who wrote, ratified, and lived with the Constitution over several generations.

JUST HOW active would a Reagan Court be? The problem is a structural one, not just a personnel problem to be remedied by stocking the Court with good guys. By now there is an enormous load of liberal precedent, most of it revolving around a few phrases in the Fourteenth Amendment: "equal protection," "due process," and "privileges or immunities." The liberal Court has used all these, under the "incorporation" theory of the Fourteenth Amendment, to require the states to be bound, along with the Federal Government, by the Bill of Rights--as interpreted by the Court.

Would a Reagan Court dare to reverse all this? The furor would be enormous. Even Meese has said he won't challenge incorporationism. Besides, the judiciary has an intitutional interest in maintaining a facade of consistency. If the Pope contradicts the teachings of his predecessor, he undermines his own authority; so with the Court.

The Supreme Court seldom flatly reverses itself. Even Brown v. Board of Education didn't expressly negate Plessy v. Ferguson; it pretended to find a loophole in it, though it discreetly abandoned this fiction in subsequent desegregation rulings. Reversing a generation of liberal decisions would take a lot of sheer nerve.

The alternative is to let a huge body of bad rulings stand as part of our constitutional heritage. The Warren and Burger Courts have exploited a seldom-noticed chink in the armor of checks and balances: Most of their "historic" rulings--on segregation, abortion, pornography, school prayer, and the like--have been at the expense of state and local, rather than federal, law. After all, when the federal judiciary strikes down state legislation, the state legislature has no reciprocal control. The principle of checks and balances presupposes different branches, but at the same level of government. This is why the Court has felt free to push the states around, even to the extent of ordering them to revise their constitutions on the one-man/one-vote principle. By the same logic, the Court could require the reapportionment of the U.S. Senate; but since the Senate can defend itself against the Court, the Court has been prudent about picking on someone its own size. (In fact, the Court seldom strikes down acts of Congress, maybe for the same reason.)

One well-placed figure at Justice doesn't see incorporationism as a flaw that calls for drastic remedies. True, he concedes, Congress could take such drastic steps as stripping the Court of its appellate jurisdiction, severely limiting the range of judicial review in the future. But he thinks that sort of action is not necessary (or politically feasible).

"Everyone agrees that incorporation in some form is required by the Fourteenth Amendment," the source says. "The question is, how much? And even liberals don't want to incorporate the right to keep and bear arms"--which would mean banning gun-control laws along with school prayer. He is optimistic: He thinks that time will take care of the major problems with the judiciary, supplying it with men better adapted to current conditions than William Brennan. In his view, the problem is less that the Court has incorporated the Bill of Rights than that it has misunderstood it.

Kinsley points out that there are often substantive, though not direct, reversals of Supreme Court decisions. The Burger Court has nibbled at some of the Warren Court's rulings on suspects' rights, for example, and Kinsley sees it beginning to nibble the edges off its own ruling in Roe v Wade. Effective reversal may not be far off; there are already three solid anti-Roe votes on the Court, Mrs. O'Connor joining Rehnquist and Byron White, the original dissenters.

Liberals in Congress are stalling on some of Reagan's judicial appointments. No Supreme Court appointee has ever been rejected expressly because of his judicial philosophy, however, and, much as they would like to, it's u nlikely the liberals will dare to do so now. Sooner or later they will have to bow to political reality: Reagan isn't going to appoint judicial activists, and there will be seats to be filled.

It's amusing to hear liberals complaining about judicial activism, considering their own past. But they have never had to face the problem of unchecked judciial power, for the simple reason that, for them, it has never before been a problem. It has been a convenience, enacting their social agenda without the annoying constraints of democracy: legislative process and political accountability. While they regarded the Court as virtually infallible, they were glad to treat its most bizarre rulings as irreversible. Now they find that there is no day-to-day corrective mechanism against the Court, as there is against the Presidency and either House of Congress, and this raises the galling prospect of an impenetrable stronghould of conservative power frustrating their agenda and violating their dearest ideals.

At most, a Reagan Court would probably undo only a fraction of the harm done by the liberals. The Court has been ideologically packed for half a century; time is now un-packing it. The five near octogenarians (plus Douglas and Potter Stewart) made up the majority in Roe, whose sloppy reasoning has drawn fire even from liberal scholars. They won't be around much longer, and their successors will be unlikely to enshrine their dreadful blunders.