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Courting Confusion: What Does a 'Reagan Court' Mean?
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16647 |
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Section : |
CURRENT ISSUES
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10 / 1989 |
3,176 Words |
| Author
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Gary L. McDowell
Gary L. McDowell is vice president for legal and public
affairs at the National Legal Center for the Public Interest
in Washington, D.C. From 1985-87 he served as chief speech
writer for Attorney General Edwin Meese III. His most recent
book is Curbing the Courts: The Constitution and the Limits of
Judicial Power, published by Louisiana State University Press. |
The past term of the Supreme Court was the first full term in which to determine whether President Reagan actually tipped the ideological balance of the Court with his appointment of Justice Anthony M. Kennedy. If one judges simply by the unusually loud and discordant chorus of conservative glee and liberal despair, Reagan largely succeeded in carrying out his promise to change the Court's direction.
Clearly the addition of Kennedy has made it possible for a conservative majority to come together in some very important cases. Usually in league with Chief Justice William H. Rehnquist and justices Antonin Scalia, Sandra Day O'Connor, and Byron R. White, Kennedy has contributed a discernible, if not dramatic, shift toward more conservative outcomes.
But ideological celebration on the Right and mourning on the Left are premature; there is less going on than meets the eye. The so-called conservative majority may ultimately prove to be ephemeral, for at its deepest level it is largely intellectually rootless. The conservative votes in many cases are coming together less as a matter of jurisprudential commitment to any central idea, such as federalism or judicial restraint, than as the result of an ad hoc approach to the issues presented in the particular cases. The splits in the votes, the concurrences, and the dissents--and the partial concurrences and partial dissents--all add up to a Court still more prone to personal predilection than one committed to fundamental principles. Thus, to speak of a "Reagan Court" at this time is risky, for it is not at all clear what Reagan's influence on the Court will mean in practice.
Justice Scalia, the
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