Copyright 2004 The New York Times Company
The New York Times
November 14, 2004 Sunday
Late Edition - Final
SECTION: Section 4; Column 1; Week in Review Desk; Ideas & Trends: Wordplay; Pg. 1
LENGTH: 1243 words
HEADLINE: Can Bush Deliver a Conservative Supreme Court?
BYLINE: By JEFFREY ROSEN.
Jeffrey Rosen is the author of ''The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age.''
AT a press conference two days after his re-election, President Bush was asked about what sort of Supreme Court justice he might nominate if and when the ailing Chief Justice William H. Rehnquist retires. Mr. Bush repeated the pledge he made in the presidential debates: ''I would pick people who would be strict constructionists.''
Liberals fear that ''strict constructionists'' -- those who believe the Constitution should be read literally -- would ban affirmative action, resurrect school prayer, dismantle the regulatory state and overturn Roe v. Wade.
And President Bush has done nothing to ease their fears. Last week, he named Alberto Gonzales as his new attorney general, reportedly to shore up Mr. Gonzales's conservative credentials for a future Supreme Court vacancy.
By promising to appoint strict constructionists, Mr. Bush has embraced the mantra of every Republican president since Richard Nixon, who first made that promise in his 1968 campaign. Yet Republican presidents have largely failed in their efforts.
In the last 36 years, four Republican presidents have appointed all but two of the current nine justices.
But on the most contested social issues -- abortion, affirmative action, school prayer and gay rights -- the court has sided with liberals, while only modestly advancing the deregulatory agenda of the Republicans.
''If the goal of Republican presidents was to build a court that exercised its own power with greater restraint or adhered strictly to the original constitutional text, then they have clearly failed,'' said Thomas Keck, a political science professor at Syracuse University and author of ''The Most Activist Supreme Court in History.''
Can President Bush do better than his predecessors? There is every reason to believe he can. Over the last three decades, the definition of ''strict constructionism'' has been refined to coincide more precisely with the political goals of its adherents, allowing fewer surprises among a conservative farm team of lawyers and judges.
The phrase is surprisingly malleable. ''I've never believed in the term strict constructionist,'' said Charles Fried, who was solicitor general under President Ronald Reagan. ''I've thought it was a code word for I'm not sure exactly what.''
When Nixon first used the phrase ''strict constructionist,'' he seemed to have in mind justices who would slow the Warren court's expansion of the rights of criminal defendants, as well as end court-ordered school busing. By these standards, he succeeded.
But Nixon's justices did not reverse the Warren court's expansion of individual rights. Three of his appointees, Justices Warren Burger, Lewis Powell and Harry Blackmun, proved to be moderate conservatives, who sided with liberals in cases involving school prayer, affirmative action and abortion.
By the time Ronald Reagan became president, conservatives were all the more determined to roll back their judicial losses.
''In the 1980's, you could say politically that strict constructionism was used as a code word for opposition to Roe, or the prayer-in-schools decision, or affirmative action,'' says John Yoo, a law professor at University of California, Berkeley, who until 2003 led President Bush's Office of Legal Counsel.
Conservatives set out to develop a constitutional methodology that would ensure that the liberal decisions of the Burger and Warren courts were overturned. In 1985, Attorney General Edwin Meese III gave a famous speech, declaring, ''We will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.''
After Mr. Meese's speech, ''originalism'' rather than ''strict constructionism'' became the judicial buzzword of the 1980's. Still, the effort by President Reagan and the first President Bush to appoint ''originalist'' judges had mixed results. After the Senate rejected President Reagan's nomination of Robert Bork in 1987, only two of the five Republican appointees -- Antonin Scalia and Clarence Thomas -- called themselves constitutional ''originalists.'' Three justices -- Sandra Day O'Connor, Anthony Kennedy and David Souter -- did not. Partly as a result, the Rehnquist court once again sided with liberals in the culture wars.
In the 1990's, during the Clinton era, conservatives redefined strict constructionism once again. They focused on areas like deregulation, choosing cases they could realistically win in the courts. ''There was less political resistance to the court's federalism decisions than abortion and school prayer, because they're less on the radar screen,'' Professor Yoo said.
In 1995, Douglas Ginsburg, a federal appellate judge whom President Reagan tried unsuccessfully to nominate for the Supreme Court, wrote an article calling for the resurrection of what he called ''the Constitution in exile,'' by which he meant strict constitutional limitations on federal power that were abandoned after the New Deal. In that article, Mr. Ginsburg wrote that he never expected these forgotten doctrines to be resurrected in his lifetime.
But his article coincided with the beginning of the so-called federalism revolution on the Rehnquist court. In 1995, for the first time since the New Deal, the court said there were limits on Congress's power to regulate interstate commerce. And since then, the court has struck down 33 federal laws. During its first 70 years of existence, the court invalidated only two.
Nevertheless, the federalism revolution hasn't quite delivered what conservatives hoped. Each time the court's strict constructionist justices have appeared on the brink of striking down environmental laws or health and safety laws, the moderates, Justice O'Connor and Justice Kennedy, have stepped back from the brink. They are less willing to overturn 60-year-old precedents that might strike at the core of the regulatory state.
''If the 'Constitution in exile' were taken seriously, a lot of environmental regulation could be under attack, occupational safety and health regulation, even possibly some securities regulation,'' said David Strauss, a law professor at the University of Chicago. ''Minimum wage and maximum hours laws? You never know.''
Today, when President Bush says he wants to appoint strict constructionists, he seems to have in mind justices who subscribe to the ''Constitution in exile'' movement. Indeed, former administration officials say all of the names on Mr. Bush's short list for the Supreme Court are considered strict constructionists who are closer to Justice Scalia than to Justice O'Connor.
''An entire generation of lawyers have been reared and trained in Justice Scalia's philosophy,'' said Jack Goldsmith, a professor at Harvard Law School, who led the second President Bush's Office of Legal Counsel after Mr. Yoo. ''So the Bush administration is likely to be more successful than its predecessors in finding reliably conservative nominees.''
Still, it would be wrong for any administration to be too confident about imposing its vision on the court. ''What history has tended to show isn't that justices change their stripes,'' Professor Strauss said. ''It's that issues change from underneath the justices. Nixon never could have imagined that Roe v. Wade would be such a big issue. We don't know what the next set of issues will be over the next few decades, and if Bush fails to get the kind of strict constructionist he expected, that's why he'll fail.''
GRAPHIC: Photos: 1969 -- Nixon wanted his appointee, Warren Burger, right, to undo the decisions of the court under Earl Warren, left. (Photo by Agence France-Presse)(pg. 12)Drawings (Illustrations by Stephen Doyle)(pg. 1)
LOAD-DATE: November 14, 2004