Courts, presidents, and precedents

Courts, Presidents, And Precedents

RONALD REAGAN'S nomination of Antonin Scalia and William Rehnquist to be Justice and Chief Justice of the Supreme Court has flushed a covey of judicial conservatives--the liberals. Senator Paul Simon, the Democratic Party's junkyard dog on presidential appointments, noted that "the law should not be a pendulum swinging from one extreme to another depending on the Administration. There ought to be stability." Over at the New York Times, Anthony Lewis observed that "judicial conservatives are . . . supposed to have a particular respect for precedent and process. Justice Rehnquist is quite ready to brush all that aside to reach the result he wants."

It recalls the moment, a few years back, when Justice Powell, writing the majority decision in an abortion case, invoked stare decisis--the doctrine of following legal precedent. The hoary precedent he had in mind was Roe v. Wade.

Does precedent carry serious legal weight--even precedents, like Roe v. Wade, that are only 13 years old? Assuredly. Does it carry absolute weight? Assuredly not--so long as America retains its Constitution, the fundamental law that limits lawmakers, and that (potentially, at least) rebukes them when they ramble. Justices being men, and men being fallible, the Supreme Court's reading of the Constitution will vary, as its members are more or less able to discern its meaning, or more or less willing to heed it.

What the Warren Court discerned in the Constitution was a series of prophetic inspirations, like the couplets of Nostradamus, which the Court was at liberty to incarnate as the promptings of sociology or higher law moved it. The Burger Court, which was supposed to roll the excesses back, instead acquiesced in the Warren Court's improvisations. (In Roe v. Wade, it set an aleatory record of its own, discovering a "right" of privacy in the Bill of Rights' "penumbra"--a decision, as a former clerk of Warren's remarked, that was "not constitutional law, and [gave] almost no sense of an obligation to try to be.")

Benno Schmidt, the president-designate of Yale, at least realizes, unlike his fellow liberals, that the Court has no obligation to go along with such stuff. "It may well be," Schmidt wrote, "that the nation is ready for a reaction in constitutional fundamentals." If the nation had been as alarmed at Reagan's constitutional agenda as Simon and Lewis are, it could have voted for Walter Mondale. It didn't. Reagan's appointees have the right to reconsider the recent judicial past in the light of their understanding of the Constitution. There is a lot that needs reconsidering.

COPYRIGHT 1986 National Review, Inc.
COPYRIGHT 2008 Gale, Cengage Learning