New York Times

February 2, 2006

Supreme Court Memo

A Court Remade in the Reagan Era's Image

By ADAM LIPTAK
WASHINGTON, Feb. 1 — Conservative lawyers in the administration of President Ronald Reagan had an ambitious agenda. They wanted the courts to pay closer attention to the Constitution's text, to fashion a more limited role for the federal government, to allow religion to have a larger presence in public life, to use skepticism in reviewing race-based classifications in the law and to stop the expansion of protections for criminal defendants.

Many of those ideas, considered bold, and even extreme, at the time, have entered the legal mainstream and now routinely serve as the basis for decisions of the Supreme Court. That means that the Supreme Court's two newest members, both alumni of the Justice Department in the Reagan years, will, if they follow the agenda they helped create back then, largely be consolidating a victory rather than breaking new ground.

Conservatives have high hopes for Justice Samuel A. Alito Jr., who was confirmed on Tuesday, and for Chief Justice John G. Roberts Jr., who joined the court in September. But their to-do list has shrunk.

Some large items, notably abortion, remain, though some conservative lawyers have reconciled themselves to trying to limit rather than overturn Roe v. Wade, the 1973 decision that found a constitutional right to abortion.

Other items have emerged more recently.

"Judicial imposition of same-sex marriage seems to be on the horizon," said Edward Whelan, the president of the Ethics and Public Policy Center and a former clerk for Justice Antonin Scalia. "We also oppose efforts to strip God out of the Pledge of Allegiance."

On the whole, though, veterans of the Reagan years expressed satisfaction about what they had achieved even before the two new justices arrived.

Charles Fried, who was United States solicitor general from 1985 to 1989 and now teaches law at Harvard, said that with just a few exceptions the court had in the last 20 years corrected what he called the excesses of the Warren court, which moved the law in a liberal direction in the 1950's and 60's in decisions concerning race, religion, criminal procedure and the role of the federal courts.

"I'm perfectly happy with things as they are now," Professor Fried said. "The sky is not falling. We just have to repair a few holes in the sky. What remains to be done is to return the law to the place where Justice O'Connor — and only in the past few years — suffered a change of heart."

Justice Sandra Day O'Connor, Justice Alito's predecessor, took a relatively liberal position on affirmative action and executive power in some recent cases.

Many scholars trace the intellectual roots of the Reagan-era project from a speech that Attorney General Edwin Meese III gave to the American Bar Association in 1985, not long after he moved to the Justice Department after working for four years as one of Mr. Reagan's closest advisers in the White House. Mr. Meese criticized the Supreme Court for what he called incoherent decisions based on the policy preferences of the justices in the majority. The court's work, he said, "defies analysis by any strict standard" and reflects only an inclination "to roam at large in a veritable constitutional forest."

The solution, Mr. Meese said, was to focus on the text of the Constitution as it was understood by its framers.

"It has been and will continue to be the policy of this administration to press for a jurisprudence of original intention," Mr. Meese announced. "We will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment."

That approach has taken hold, said Steven G. Calabresi, a law professor at Northwestern University and a chairman of the Federalist Society, the conservative legal group.

"The very battleground has changed," Professor Calabresi said. "Compared to 25 years ago, the text of the Constitution is treated as much more important. The court also pays more attention to the original history surrounding the Constitution."

Among the triumphs was a new understanding of the First Amendment religion clauses that culminated in a decision in 2002 that upheld school vouchers allowing parents in Cleveland to send their children to the public or private schools that they chose. Almost all the participating students used the money to go to religious schools.

"Suddenly, a blockage that had existed for at least 50 years was removed," said Douglas W. Kmiec, a law professor at Pepperdine University who was an assistant attorney general under Mr. Meese. "What the Reagan administration was able to do was recover the original understanding of the religion clauses. Neutrality toward religion does not mean secularity. It means evenhandedness."

There was a similar change in direction in criminal law. The Warren court, Professor Fried said, took an activist approach to protecting the rights of criminal defendants. One feature, he said, was federal courts' meddling in state proceedings.

"It called for virtually ad lib review of state criminal convictions in federal district court," he said, adding that had changed, prompted by judicial decisions and Congressional action, both of which have limited access to the federal courts.

Conservative lawyers have also succeeded in persuading the courts to subject all racial classification in the law to the searching skepticism that lawyers call strict scrutiny. Earlier decisions, Professor Fried said, ruled that "so-called benign race consciousness was subject to a lower standard of scrutiny than derogatory race consciousness."

That distinction was rejected in decisions in 1989 and 1995, both written by Justice O'Connor. But it was also Justice O'Connor who wrote for the majority in the 2003 decision that upheld a law school's affirmative action plan. She said the plan survived strict scrutiny, though dissenting justices and conservative lawyers accused her of misapplying the standard.

Conservatives have had less success in finding judicial support for what they call a unitary executive, in either of the term's two senses. In the more narrow one, which calls for presidential authority over all executive actions, conservatives suffered a setback when the Supreme Court upheld the independent-counsel statute in Morrison v. Olson in 1988.

The more robust version of the unitary executive theory claims broad areas of unreviewable executive power. In three cases involving people suspected of terrorism in 2004, the Supreme Court said courts must have a role in testing the legality of executive actions.

But it is the Roe v. Wade decision that continues to frustrate conservative lawyers most.

"There is broad consensus among judicial conservatives that Roe is wrong and that its maintenance has done deep damage to the integrity of judicial decision making," Mr. Whelan said.

Professor Fried said progress had been made on this front, too, particularly in Planned Parenthood v. Casey, a 1992 decision that upheld restrictions on abortion but affirmed the core right to abortion.

"Casey is just right," Professor Fried said. "The law of abortion has become much more nuanced. It's appropriately flexible."

The composition of the court has changed since the Reagan era, and that has helped move the law in a conservative direction. Now, with the two new justices, there are probably four solid conservative votes on many issues.

As important, the court's liberal wing is not liberal on every issue.

"Breyer writes antitrust opinions that are frankly not very different than the ones Judge Bork would have written," Professor Calabresi said.

Justice Stephen G. Breyer was appointed by President Bill Clinton. President Reagan's nomination of Judge Robert H. Bork was rejected in 1987.

It is the center of the court that matters most. Until 1987, the swing vote was often Justice Lewis F. Powell Jr. The new swing vote, succeeding Justice O'Connor, appears to be Justice Anthony M. Kennedy.

"Lewis Powell upheld laws prohibiting gay sex," Professor Calabresi said. "Kennedy struck them down. Powell upheld laws allowing the death penalty. Kennedy struck them down for the mentally retarded and for offenders who were 16 or 17.

"That really isn't progress for a conservative."