The New Chief, the New Justice, and the New Court

...If this outlook has often made Rehnquist a vigorous dissenter, it has in fact made him in other ways a more accommodating colleague...

...It is possible that Judge Antonin Scalia was given an easier time in his confirmation proceedings because Senate liberals did not have the nerve to mount another ad hominem assault on a Reagan appointee so soon after the attacks on Justice Rehnquist...

...An infanticide amendment is also critical insofar as it would make it a federal crime to starve a baby to death on the basis of the infant's handicap, and grant the Secretary of Health and Human Services broad powers to promulgate regulations to enforce it...

...But in the end, it is true, the Burger Court was not determinedly liberal in its policies...

...More than any of his colleagues, Rehnquist is comfortable with the notion that the Constitution cannot offer solutions to every conflict and satisfaction to every claim, and this makes it easier for him to formulate and to stick with general rules...

...Uncowed by all these solemn warnings (and still a cigarette smoker), Scalia cheerily observed that the country might well benefit from a half-dozen constitutional amendments and proceeded to suggest a half-dozen controversial Supreme Court rulings as primecandidates for popular overruling...

...Scalia was then a law professor at the University of Chicago, but he had none of the typical law professor's disdain for mere politics...

...The Court demanded that laws provide equal treatment for citizens and noncitizens, except when this didn't seem proper to the Court—or when it didn't seem proper to Congress...

...22 THE AMERICAN SPECTATOR OCTOBER 1986...

...Of all the justices, Rehnquist least often resorts to separate concurring opinions—those weasel statements allowing justices to endorse a decision while distancing themselves from its logic and preserving their future options...

...Scalia's dissent, invoking the logic of Chief Justice Marshall, insisted that the court's role was to enforce personal rights, not to exercise discretion in the public interest: Any scientific theory which required this kind of adjustment would be pronounced useless and discarded...

...Its zigzagging course often provoked stinging dissents from the more liberal justices, but the dissenters frequently derided the Court's baroque doctrinal camouflage only to urge even more evasive alternatives—as when Justice Marshall, in several passionate dissents, insisted that the Court was wrong to adopt a "twoand-a-half tier" system of scrutiny for "equal protection" claims under the Fourteenth Amendment and should in-stead embrace a "sliding scale" incorporating a "spectrum of standards...

...A rape prevention amendment would prohibit dial-a-porn operations, while an anti-child molestation act would crack down on computer bulletin boards which trade information on sexual liaisons with children...

...The Court over which: Chief Justice Burger presided these past seventeen years became far and away the most divided Supreme Court in American history' if ore judges tiy't-he number of 5-4 or 6-3 decisions, The number...

...More particularly he has characterized the pattern as an alliance against the executive between activist judges and enterprising factions in Congress—political factions, like the special patrons of the environmental movement, who lacked the strength to get their views enacted into actual statutes but were sufficiently well placed to leave helpful policy cues in committee reports for their allies on the bench...

...In recent decades, the Court has acted as the bold point-man for liberal policies—like busing for integration or abortion on demand—which liberals were afraid to advocate directly on the merits (but could afterwards support as "the law of the land...

...But they undermine the moralism on which successive ex-tensions of federal power have thrived...

...The first is amending the exclusionary rule to include good faith exceptions for police officers...

...Partly it will prove increasingly influential because two of the most able and articulate advocates of that view have now been raised to positions of greater prominence, while a very large number of bright and thoughtful lawyers of similar views have also been appointed to lower court positions in recent years...

...It is not that he is a slavish supporter of anything done by the executive branch of the government...

...Paul M Weyrich is president of Coalitions for America...

...The par-ticular constitutional interpretations he advocates would rarely raise in-superable barriers to particular liberal policy measures...

...At a time when AEI was trying to cultivate a respect-able, bipartisan image, Scalia was described—with a mixture of envy and awe—as "a real partisan...

...Scalia served as Assistant Attorney General for Legal Counsel at the outset of the Ford Administration—which is to say, in the immediate aftermath of the Watergate scandals and the resignation of President Nixon—making him the official legal adviser for the presidency at a time when it had reached a particularly low ebb in public esteem...

...Scalia's view of the proper judicial role seems to be very close to the Rehnquist view...

...He liked to quote the dictum of his former boss, Attorney General William Saxbe, who observed that the problem with Republicans was that "the Democrats want to govern the country and the Republicans simply don't want them to...

...perception—even if drawn to a wrong- tive public policy views...

...And it is this temper, more than his stand on any particular issue, that most outrages Rehnquist's liberal critics...

...The experience seems to have strengthened his disdain for the moralistic cant that had emerged as one of the main props of Democratic politics in the 1970s...

...For courts, the preoccupation with fairness involves a more immediate problem: It undermines the judge's obligation to established law and leaves everyone else in confusion about what the law is supposed to be...

...Or to put it more directly, his willingness to say no...

...Scalia might be better described as an "executive's judge...

...He was In the end, the Burger Court was not determinedly liberal in its policies...

...In 1981 President Reagan appointed Antonin Scalia to the D.C...

...And there are some signs that many members of the current Court are growing tired of petty squabblesover doctrinal adjustments and may be increasingly receptive to the kind of intellectual and moral discipline Rehnquist has offered in his own opinions...

...What does it take, one wonders, to arouse judicial suspicions that a legal theory is wrong...

...It was not really determinedly anything...

...In 1982, to cite only one example, Scalia wrote an opinion insisting that American property holders in Honduras could pursue a claim against the government for damage done to their property by American military maneuvers there...

...repealing the resolution equating Zionism with racism), expelling Libya from the U.N., a cut in assistance to the PLO, and removal of SWAPO, the PLO, the ANC, and the Pan-African Congress from "permanent observer status" in the U.N...

...The Rehnquist-Scalia perspective is likely to prove increasingly influential on the Supreme Court and throughout the federal judiciary...

...children need to be educated on the dangers of drugs...

...The second is habeas corpus reform which would limit the currentproliferation of habeas corpus petitions being filed...

...For this reason I see the need for what Secretary Bennett calls "character education...

...It refused to make even a down payment on this venture but rather affirmed, in an uncompromising and unapologetic way, that the Constitution had nothing to say about the matter...

...In his academic writings Scalia frequently criticized regulatory statutes that were declarations of good intentions rather than clear formulations of policy...

...It is a good field for stiffening legal backbone, because the "minorities" pleading for special judicial concern in this area are usually middle-class environmentalists or consumer advocates, hardly abandoned orphans in the political process...

...It may not be a heroic role, but it is one with great constitutional dignity...

...It seems to me a little late in the day for this court to weigh in against this consensus...

...Despite what some of his critics charge, Rehnquist's aversion to exotic constitutional claims does not make him a doctrinaire "majoritarian...

...Rehnquist has been perfectly willing to overturn legislative judgments when they violate some clear constitutional prohibition: he has voted (over the screaming dissents of Justices Marshall and Brennan), for example, to overturn several state laws violating the constitutional prohibition against "impairing the obligation of contracts...

...to a relatively uniform body of rules...

...The problem with "fairness" as an overriding goal is well illustrated by the current political plight of the Democratic party: people too preoccupied with fairness have a hard time saying no and they often end up, pushed and pulled by conflicting en-treaties, as the active instruments of new kinds of unfairness...

...Rehnquist's view of law does not leave much concern for fastidious distinctions or for preserving future options...

...The new appointments are not going to cure the Court's divisions—not at least while the Court's irascible octogenarians cling to their posts...

...In 1979, when more than thirty states had passed resolutions calling for a constitutional convention to draft a balanced budget amendment, AEI sponsored a panel discussion on the issue, bringing Scalia together with several law professors who were then far better known...

...Without a proper defense, all our other rights may soon end...

...In the next case on the subject, Justice Rehnquist wrote for a new majority now prepared to wash its hands of "irrebuttable presumption" pleas...

...An advocate of free market policies but by no means a libertarian, Scalia wanted to see his party take responsibility for governing...

...Scalia was exasperated by the use of high-sounding legalistic flimflam to intimidate people from advancing respectable political agendas...

...Rehnquist has firmly and persistently resisted the notion that the Supreme Court has a residual authority to re-dress all the unfairness in American public life...

...But the issue of drugs goes beyond legislation...

...The Court did not take the easy step of announcing a constitutional right to engage in homosexual acts in the privacy of the home, while reserving its options on the degree of constitutional protection available for homosexual bathhouses or gay bars...

...should have an immediate and highly salutary effect on the muddle...

...to have been a significant step forward in the achievement of a civilized political society...

...I favor the death penalty for any accessory to a drug-related death, such as a "pusher...

...But the larger point is that, as Rehnquist's critics emphasize, the Constitution in-deed is not a majoritarian document...

...Where laws must get through two legislative chambers and survive an executive veto power, there is bound to be an ongoing scramble for political allies and legislative coalition partners, and "discrete and insular minorities"--ostensibly in need of special judicial solicitude—often have the most political leverage because they have the most political cohesion...

...As Chief Justice, it is true, Rehnquist will not be able to compel any other justice to change his vote...

...Quick to launch new doctrinal pro-grams, the Court was then often reluctant to pay the bills...

...Far better, in the end, an "executive's judge"—one who enforces the basic ground rules, recognizing that he cannot be one of the players—than a judicial executive who wants to manage political conflicts...

...With the release of the Attorney General's report on pornography comes the impending need for the passage of two amendments: a rape prevention amendment and an anti-child molestation act...

...But he is a judge who sees his role as delineating and enforcing clear limits and then leaving executive officials to make the tough choices they must make within those limits...

...It is just because the Constitution does not allow the majority to get its way very directly that appeals to the Court to save "minorities" from the oppressions of the majority usually have a rather hollow ring...

...Finally, the Reagan agenda must include Pentagon reform, for it is critical for the welfare and safety of this country that we get the best possible defense for our money...

...And the Court has served as a compliant cleanup squad, compensating for liberal legislative weakness or oversight by reinterpreting statutes to meet the needs of changing fashion (as in Justice Brennan's convenient finding that the Civil Rights Act of 1964 does not prohibit racial favoritism toward minorities because a law "triggered by a Nation's concern over centuries of racial injustice" could not possibly have meant what it said...

...And he did not go in for exaggerated solemnity about the majesty of "the law" or the heavy burdens of the judge...

...Still, I don't think Senator Hatch quite captured Scalia's quality when he praised him during the confirmation proceedings as a "judge's judge...

...All the others pulled their chins, puffed on their pipes, and harrumphed about the danger that such a convention would "run wild" and propose constitutional amendments on a range of other issues quite unrelated to the balanced budget proposal...

...This notion, first popularized by the Warren Court, has beguiled virtually all of Rehnquist's col-leagues to a greater or lesser degree...

...It was not really determinedly anything...

...Another important issue that needs to be addressed is drugs...

...Important legislation for the pro-life community is a bill denying personal tax exemption on behalf of a baby who is accidentally born alive following a botched abortion...

...If they think Scalia will prove more "flexible" or less "extreme" than Rehnquist, however, they are most likely deceiving themselves...

...It requires a good deal of intellectual agility to draw clear and compelling doctrinal lines and then a good deal of moral discipline for judges to stick with these lines...

...I had the chance to get to know Nino Scalia in the last years of the Carter Administration, when I worked for Regulation, a journal published by the American Enterprise Institute for which Scalia served as a part-time editor...

...Jeremy Rabkin THE NEW CHIEF, THE NEW JUSTICE, AND THE NEW COURT Liberals are right to worry...

...We are not so dangerously divided that we need to have our public policy managed from above by benevolent judges...

...Worse, they often become so taken with their own good intentions that they fail even to notice the new harms they are inflict20 THE AMERICAN SPECTATOR OCTOBER 1986 ing...

...What has distinguished Justice Rehnquist above all has been his willingness to draw clear lines and stick with them...

...But this should not discount the enforcement of existing statutes on the question of pornography...

...But the new appointments Jemmy Rabkin, a frequent contributor, is assistant professor of government at Cornell University...

...Where every one of his colleagues has by now expressed concern about the dangers of benign quota schemes and struggled to articulate some limitations on affirmative action, Rehnquist has been the most consistent champion of the simplest solution—a blanket prohibition on racial favoritism of any kind...

...Court of Appeals did not provide enough opinions on agitated constitutional topics for his critics to take his measure...

...The country seems to have wearied of moral hysteria and factional intransigence...

...Since his election, President Reagan has been promising a balanced budget amendment, but has yet to persuade Congress and the states to make this item part of the Constitution...

...He is far more of a threat to the a little more sympathetic to conserva- political vision cherished by congressional liberals than Chief Justice Burger ever was or than President Reagan's first nominee, Sandra Day O'Connor, has turned out to be...

...Rehnquist is not just judge...

...He has resisted the sort of special claims on the Constitution thatdrag the law—and the Court—into endless refined wrangling to accommodate this or that new claim and then to make adjustments for the inevitable counterclaims...

...Senator Edward Kennedy, one of William Rehnquist's severest critics, was animated by an essentially correct Say this, at least, for Chief Justice Burger: Nothing so became his office as the leaving of it...

...Domestic crime remains an important issue, and conservatives are pro-posing two pieces of legislation aimed at cracking down on crime...

...In his subsequent academic career, Scalia wrote relatively little about fashionable constitutional questions of equality or freedom of expression but concentrated instead on his original field, the gritty arrangements of administrative law...

...In the mid-1970s, for example, the Court toyed with the doctrine that restrictions embodying "irrebuttable presumptions" should not be imposed without "individualized hearings...

...Court of Appeals for according standing to individual congressmen to challenge executive policies and then holding that the courts could exercise "the ad-hocery of remedial discretion" to withhold intervention when they deemed such restraint to be in the public interest...

...Rehnquist's well-argued dissents from the Court's most controversial activist ventures are well known...

...Rather than a moral majoritarian, he might be described as the judicial equivalent of a fiscal conservative, anxious to avoid overdrawing on the Constitution and vigilant against exaggerated expectations for the Court...

...This means the teaching of traditional values in the classroom.(Teaching values, contrary to what liberals have been saying, is not teaching religion...

...Rehnquist's dissent was devastating: Hundreds of years ago . . . controversies were determined on an individualized basis without benefit of any general law...

...But he has often been equally pungent and clear-headed in knocking down less notorious judicial ventures (and has often carried the Court along with him in these assaults...

...By allowing standing—that is, access to the courts—to challengers with no personal rights of their own at stake, the new judicial role has, in Scalia's view, threatened the separation of powers and the political accountability of the executive...

...By resigning when he did and allowing President 'Reagan to appoint the successors that he did, Burger has already done more to revive the reputation of the Supreme Court and more to restore the health of the Constitution than anything he can do hereafter as chief cheerleader for the Constitution's Bicentennial...

...Most students of government consider the shift...

...He was also a frequent critic of elaborate procedural requirements in administrative rule-making, which he saw as naive or hypocritical contrivances concealing the irreduciblypolitical nature of administrative policy-making...

...Both men envisage a role for courts that is limited but hardly passive and feeble...

...he really is difheaded conclusion—when he de- ferent from most of his colleagues in nounced Rehnquist as "too extreme" to his outlook and assumptions as a be Chief Justice...

...The Burger Court endorsed busing for school integration but then stymied the integration advocates by refusing to pursue busing in-to the suburbs, where it might have made more sense...

...The Court also leaves behind more ,Burger uddled constitutional doctrine than'any Supreme Court in our history...

...A Department of Justice strike force is essential for the fight against pornography to continue...

...THE AMERICAN SPECTATOR OCTOBER 1986 21 gregarious and amusing, and he clearly relished a good fight...

...The Court struck down a whole series of state residency requirements for "burdening" the right to travel but drew the line at requiring government funding of the new right to abortion...

...Other important foreign policy is-sues are getting SDI quickly deployed and aid to freedom fighters around the world...

...Thus it held in one case that a school district could not require pregnant teachers to withdraw after the fifth month of pregnancy without al-lowing individual teachers an opportunity to show why the rationale for the law would not hold in their own particular cases...

...Most of all, he criticized the expansion of judicial review over regulatory policy-making during the 1970s, when courts began to take up the claims of environmental groups, consumer groups, and others complaining not about regulatory excesses threatening their own property or liberty but about the overall implementation of public policy...

...Both Rehnquist and Scalia envisage a role for the courts that is limited but hardly passive and feeble...

...If so, the Georgia sodomy case decided this past spring may be a herald of things to come...

...But in some ways the Court may simply be catching up to the rest of the country...

...And it is a beguiling notion, because fairness seems such an indisputably worthy goal...

...Or it is possible that the relatively brief service of Judge Scalia on the D.C...

...Still, a forceful Chief Justice can be a moral influence and an institutional con-science for the Court, whether or not he gets his way on every particular issue...

...Court of Appeals, the court most preoccupied with suits against federal administrative agencies and the very court most no-table for the kind of judicial activism in administrative law that Professor Scalia had been criticizing in the late 1970s...

...Thus in a 1984 opinion he chastised his col-leagues on the D.C...

...The Rehnquist Court, in embracing this perception, may be launching a new era in constitutional jurisprudence...

...The opinions he has written since then certainly display clarity and craftsmanship, and it is noteworthy that his fellow judges on that court (many of them targets of his academic critiques in earlier years) all seem to have spoken well of his professional manner when questioned about his Supreme Court nomination by investigators for the American Bar Association...

...More-over, with a balanced budget amendment we would see a renewed effort in privatization...

...But I also think this view will exercise in-creasing influence and discipline because it is, in itself, a view in keeping with the times...

...of distrustful concurring opinions, or by the number of shrill and indignant dissents each year...

...In this sense, Rehnquist might indeed be described as "insensitive to minorities...

...This problem has not, of course, prevented the Supreme Court from serving as a very convenient partner for liberal politicians...