Constitutional Opinions/Was a New Supreme Court Elected in 1984?

...Though many of these critics (most notably Jerry Falwell) subsequently gave their blessing to Justice O'Connor-in time for the 1984 election-their initial concerns do not appear so unfounded, even in retrospect...

...Of course, Mondale himself would have been one of the first to denounce any politician (or at least any white politician) who characterized Democratic support for Israel as a "religious test" in foreign policy...

...If President Reagan hopes to achieve major reforms in constitutional law, he must nominate new justices with the right political convictions and with sufficient strength of will to engage a doctrinal struggle on a very broad front...

...The implications of this charge are so ugly, it is hard to imagine anyone but a true believer would have dared to make it so directly before so many millions of viewers...

...Eisenhower's nomination of Earl Warren to be Chief Justice, for example, was inexplicable except in relation to GOP party politics, where Warren, as Republican governor of California, had exerted major influence on Ike's behalf in 1952...

...But in the long run, the fact that FDR had been willing to invest so much political capital in attacking the Court surely intimidated and demoralized the defenders of the old Constitution and greatly emboldened Roosevelt's subsequent appointees in their assaults on the older doctrines...

...But whether we will have begun to refurbish our working constitutional order by then remains much in doubt...

...It also makes one wonder how serious Reagan is about the challenge...

...Still, the bogey of the Falwell Court may have helped reinforce Mondale's hold on black and Jewish voters last fall...

...Within five years after his first appointment, the Court had, in fact, dynamited volumes of precedent, stretching back more than five decades, to ensure that the judiciary would never again have the doctrinal resources to challenge economic regulatory schemes...

...O'Connor's reticence on this question provoked a number of prominent conservatives and right-to-life advocates to oppose her confirmation...

...But lower court appointments are not such highly publicized events-nor such highly prized rewards-as appointments to the Supreme Court...

...Last fall's campaign suggests this will be very difficult...

...But it is also important for the President to prepare the way for his appointees by stating clearly and candidly the disagreements with current doctrine that have inspired his choices...

...Mondale's reasoning seemed to be that a position prominently embraced by particular religious sects must for that reason be an inadmissible political standard...

...Thus when Mondale charged (in his first televised debate with Reagan) that the Republican platform imposed a "religious test" for judicial appointments, it is just possible he really believed it himself...

...President Ford seemed to treat his one nomination to the Supreme Court as too important for politics, but the effectual significance of this approach was simply low politics in a different form...

...O'Connor herself declined, in her Senate confirmation proceedings, to confess to much more than her sex...

...A justice who attacks the Court's past decisions weakens his own instrument of influence for the future...

...O'Connor was a disturbing and potentially dangerous concession to the pious humbuggery of his opponents...

...Doubtless the parchment text in the National Archives will be dusted off for the occasion...

...If Mondale's bluster was dismaying, however, Reagan's responses were hardly reassuring...

...Will the new Reagan appointees settle for surgical incisions to remove the most noxious irritants in the contemporary case-law-or bear down for a relentless root-canal operation on the skewed ideological premises of the modern Court...

...Where Mondale hinted darkly at conspiracy, Reagan seemed to display serene detachment...

...And, after all, such complaisance should not be too surprising: O'Connor's refusal to commit herself in advance on Roe-the most wanton, outrageous decision in the Court's entire history-suggested at the outset that she had more concern for the institutional prestige of the Supreme Court than for the legal integrity or the moral authority of the Constitution...

...On both counts, in fact, the conventional wisdom is largely wrong...

...A subsequent Eisenhower appointment went to William Brennan, then an unknown state judge in New Jersey, reportedly because administration strategists calculated that his family background would impress Catholic voters in eastern states...

...Having relied on the Supreme Court for so many years to help effectuate their policies, liberals are unlikely to give it up without a very bitter fight...

...His appointees continued patiently nurturing Democratic constituencies and advancing New Deal visions until they retired from the Court-the last of them thirty years after Roosevelt's death...

...CONSTITUTIONAL OPINIONS WAS A NEW SUPREME COURT ELECTED IN 1984...

...She betrayed no qualms about the Court's quest to save one half of the voters from the other half, voiced no reservations about the Court's eagerness to impose the ideological blessings of the Equal Rights Amendment on a country that had already decisively rejected ERA through the political process...

...Moreover, the strange caricature now presented to the nation as "the Constitution" did not emerge from the random impulses of idiosyncratic justices...

...Roe had sanctioned state regulation to protect the life of the fetus only in the last third of pregnancy, on the assumption that only in these last weeks could the child be viable outside the womb...

...It was Justice O'Connor, for example, who wrote the Court's 1982 decision holding that Mississippi could not maintain a separate nursing college for women (even though it provided a coeducational alternative as well...

...This was, to be sure, an argument for cutting back on Roe-but without squarely repudiating the moral and legal hubris of the original decision and without attacking the larger constitutional perspective that inspired There seems little doubt that, whatever else they do, subsequent Reagan appointees will also be prepared to cut back on Roe v. Wade...

...And, as the response to last year's string of "conservative" decisions on the Court suggests, even limited deviations from the orthodoxies of the last two decades will expose the Court to thunderous denunciations from these circles...

...His charge that Jerry Falwell would decide Reagan's second term Court appointments was shameless demagogu-ery, of course, as well as ineffectual politics...

...The relevant plank of the Republican platform called for judges who "respect the sanctity of human life," and doubtless most of the Convention did understand this as a call for judges opposed to abortion...

...So far, Justice O'Connor's record does not give her the profile of a committed combatant...

...Surely he must have known the Falwell charge was, at bottom, preposterous, but contemporary liberals have managed to persuade themselves of a great many bizarre conclusions where their Constitution is concerned...

...What ought we to expect, then, from High Court appointments over the next few years...

...The question is whether the Reagan appointees will allow the Court a graceful, measured retreat or whether they can harry the Court into a full-scale rout from the liberal jurisprudence of the last two decades...

...On the one hand, Reagan's much heralded pledge to appoint a woman to the Court was vulgar politics which very drastically limited his field of choice...

...The nominees need not have extensive judicial experience, and indeed it is important to avoid nominees too much taken with the cult of the robe...

...The conventional wisdom is that every President tries to reshape the Court to his liking and every President is more or less foiled in this effort, as his appointees take on the independence conferred by a life-tenured office...

...The President should seize the opportunity at each new appointment to remind the Court and its liberal courtiers that adherence to the doctrinal drift of recent decades may still be more damaging to the Court's prestige...

...There the Court struck down a local ordinance imposing some minor procedural restraints on access to abortion...

...In sum, more concerned with image than impact, Ford threw away his opportunity to influence the direction of the Court...

...She pointedly refused to commit herself on the one issue of most concern to many senators-the constitutional validity of Roe...

...No other country in the Western world has seen fit to follow Roe's lead in sanctioning abortion on demand through the sixth month of pregnancy and the right-to-life movement in America, it is now clear, will mount ever more powerful attacks on the Court until it relents from this stand...

...Of course, it is not just professional courtesy that usually prompts Supreme Court justices (or prospective justices) to treat the work of their colleagues and predecessors with forbearance...

...by Jeremy Rabkin Having won his re-election, Ronald Reagan will preside over the ceremonies in 1987 marking the 200th anniversary of the federal Constitution...

...O'Connor's dissent urged a more relaxed or deferential Court response to state regulation of abortion on the ground that subsequent advances in medical technology had already invalidated Roe's trimester formula...

...And when a vacancy arose on the Court, Ford allowed Levi to pick a federal judge from Chicago, John Paul Stevens, whose record on the bench displayed intellectual capacity but none of the strong conservative commitments that an ostensibly conservative administration might have been expected to seek...

...But on abortion, as on several other constitutional issues, many liberals really do seem to think their opponents are not merely mistaken in their conclusions but inadmissible participants in the debate...

...But on many issues, O'Connor has found it easy enough to glide along with the trendy doctrinal innovations of the 1970s...

...But why call this a "religious test...

...So let the President and his nominees express their hopes for a changed direction on the Court quite openly...

...Whenever the issue of Court appointments came up in the campaign, the President simply pointed to the "excellent" performance of Sandra Day O'Connor-without venturing any indication on the judicial opinions or personal characteristics meriting such praise...

...And only in the fantasy world of the left-where a "centrist" line is conceived as simply a slower lane to socialist Utopia-can the present Court be viewed as conservative...

...Yet all but two members of the current Court were appointed by Republican Presidents...

...The congressional repudiation of Roosevelt's earlier effort to "pack the Court" (by expanding the Court's size to allow for several new appointments at once) testified to the continuing political strength of the old Court and its doctrines...

...Nixon's nomination of Lewis Powell followed this pattern: As a former president of the American Bar Association, Powell was a Southerner who was sure to be confirmed, even by a suspicious Senate, and Nixon was more concerned at that point to find a justice from the South than an actual opponent of forced busing or racial balancing schemes...

...The Mondale campaign surely provided a foretaste of the opposition to come...

...Franklin Roosevelt, who ultimately had the chance to make nine appointments, reshaped the character of the Court and the Constitution more dramatically than any President in our history...

...In this century, President William Howard Taft had the chance to appoint six new justices and, on the whole, could not have been more satisfied with their decisions had he helped write them himself-which he, in fact, proceeded to do (to the general satisfaction of the Court) after his own elevation to Chief Justice in 1921...

...Wade, the Supreme Court's 1973 decision decreeing a right to abortion...

...The Reagan justices will be continually admonished-by Court colleagues, commentators, and a host of special pleaders-that abrupt repudiations of established precedents would threaten the Court's legitimacy...

...Some appointment opportunities were sacrificed to transient electoral or party concerns-to low politics, that is...

...President Roosevelt was determined to remove the Court as an obstacle to New Deal programs...

...In truth, it is probably a mistake to dismiss all of Mondale's rhetoric in this area as calculated demagoguery...

...Still, the Court has made dramatic turn-arounds in the past...

...Where Mondale denounced ideological criteria for appointment to the Court, Reagan seemed to disclaim almost any definite standards...

...Then let Senate liberals explain why they must vote against any nominee who opposes busing and quotas, the harassment of religion and the protection of hate-mongering "speech"-or indeed the right to abortion-lest we have "ideological tests" for Court appointment...

...Predictably, Powell proved to be neither...

...In criminal procedure cases and in a few other areas, it is true, she has voted rather predictably with her old law school classmate, Justice William Rehnquist, the most consistent conservative voice on the current Court...

...When it came right down to it, surely most people saw less threat Jeremy Rabkin is assistant professor of government at Cornell University...

...Thus it is most of all in his scare talk about the Supreme Court that candidate Mondale, who so often assured us he would rather "lose with decency than win without it," showed these were not, after all, his only alternatives...

...On the other hand, his refusal to explain the substantive views that attracted him to Mrs...

...And Reagan's response to the one High Court vacancy he has faced thus far does not suggest he is above the political temptations that beguiled his recent predecessors...

...What seems to have mollified most of O'Connor's initial critics was her dissenting opinion in the Court's 1983 Akron decision...

...So far President Reagan's record of appointments to the lower federal courts has evidenced an unapologetic commitment to moving the judiciary in a conservative direction...

...In its time, this trashing of the established Constitution had broad political support...

...Even if the President does not feel obliged to appoint principled anti-abortionists to the Court, the fact is that most lawyers and judges (outside the strongholds of feminist zealotry) have by now come to recognize that the Court overreached itself with Roe...

...And similar demagogic appeals may make an intimidating difference in Senate confirmation proceedings for High Court nominees-particularly if Republicans lose control of the Senate in 1986...

...Thus a distinguished Harvard law professor once defended the Court's abortion decision on the grounds that "the inescapable involvement of religious groups in the debate over abortion rendered the subject inappropriate for political resolution...

...What was that about "religious tests" in public life...

...Can Reagan start to efface the decades of Supreme Court graffiti that have obscured the original masterwork of the Founders...

...In its disdain for public morality and private property, on the one hand, and its enthusiasm for social engineering schemes, on the other, the main lines of constitutional doctrine over the last two decades have followed the dominant opinion in the prestige law schools, in the New York Times and other elite media, and in the liberal wing of the Democratic party...

...Following President Reagan's lead, Mrs...

...Anxious to distance his administration from the scandals of the Nixon years-which saw two successive Attorneys General end up in jail-Ford chose a notably non-political man to head the Justice Department, Edward H. Levi, president of the University of Chicago...

...But it was not inevitable, for all that, and probably would not have occurred (at least on the scale that it did) without ruthless partisan effort...

...from a Reagan court, however selected, than from the kind of justices likely to be appointed by Mondale-a long-time champion of forced busing, bureaucratic power, and cost-is-no-object entitlements...

...So retreat seems inevitable...

...Most Presidents have not pursued a well-considered appointment strategy, but the ones who did often played the game with considerable success...