Un-packing the courts

National Review, April 11, 1986 by Joseph Sobran

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.