The Supremes, Past and Future

There is a long but excellent analysis piece in the Times this morning about the history of the Supreme Court over the last 36 years. It focuses on the composition of the court, and how that has changed, but more importantly it discusses the efforts by past conservative presidents (Reagan and Bush I) to push the court in a more right wing direction, and why they have generally failed.

"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.

There's a lot of concern over the possibility of Bush appointing several Supreme Court Justices during his second term, but there may be less to worry about than people might think. Getting somebody who is too extreme past a Democratic filibuster might prove impossible. And, as with his Republican predecessors, Bush II might find that his fine "strict constructionists" wind up being surprisingly moderate once they land their posteriors in seats from which they can not be evicted.