Book Review : Reagan and Packing the Supreme Court

Packing the Courts: The Conservative Campaign to Rewrite the Constitution by Herman Schwartz (Scribner’s: $19.95; 384 pages)

Every law restricts freedom. Not just the laws against murder and robbery, but the laws against driving through a red light and spitting on the sidewalk as well. They all inhibit a person’s right to do what he wants.

We go along with these limitations and give up some of our freedom in the interest of a smoothly functioning society, which provides benefits that make up for the loss.

The proper balance between the rights of individuals and the rights of society is, therefore, a question that every law addresses, at least implicitly. When legislatures pass laws and courts enforce them, they are asserting that the greater good wins out over the right of an individual to do something that is probably anti-social.


Where to Draw the Line?

But it is difficult to say exactly where to draw the line between the rights of the group and the rights of the individual. The line tends to shift.

For example, should evidence seized without a search warrant be admissible in court? The Supreme Court says no. Suppose the police have a “good faith” reason to believe that their search warrant is valid when in fact it isn’t? Then, the Court says, the evidence can probably be admitted. In that case, society’s interest in punishing criminals wins out over an individual’s right not to be the object to an invalid search.

In general, those who emphasize the rights of society tend to be called “conservative,” while those who favor the rights of individuals tend to be called “liberal.” In matters of individual liberties, conservatives favor the state. They side with authority. Liberals, on the other hand, want to draw the line to grant more freedom to individuals. In the last several decades, they have looked increasingly to the federal courts to protect individuals from the tyranny of the majority.


This split has fueled much of the Reagan Administration’s efforts to turn things around by putting conservatives on the federal bench, culminating in last year’s nomination and defeat of Robert Bork for the U.S. Supreme Court.

Herman Schwartz, a law professor at American University in Washington and a frequent liberal commentator, has written a scathing but accurate history of the Reagan Administration’s single-minded plan to reshape the federal judiciary in its image. Unable to get its social agenda through Congress, the Reagan Administration has tried to enact it through the courts.

“Today’s conservatives are trying to turn the clock back in not just a few areas,” Schwartz writes, “but also in much of American life--race and other kinds of sex discrimination, abortion, access to the courts, criminal procedure, church-state separation, school prayer and aid to parochial schools, help for the handicapped, economic regulation, free speech and press, national power, welfare and more.”

During President Reagan’s first term, the effort proceeded slowly. The Republicans had control of the Senate and believed they had a chance to enact their social program legislatively.


But in the second term, when they realized that a President’s personal landslide did not guarantee legislative support for his political agenda, the White House turned to the courts. By the time he leaves office, Reagan will have appointed more than half of the sitting federal judges.

The Bork nomination in the summer of 1987 did not come out of nowhere. It was the climax of a campaign that saw Reagan’s nominees become increasingly political, arousing increased opposition in the Senate (which the Democrats had won back in November, 1986).

A year before the Bork nomination, with the Reagan campaign on the courts already in full swing, opponents garnered 33 votes against the elevation of William H. Rehnquist to be chief justice, the greatest opposition to any nominee for that office in history.

And just a few months before that, the President’s opponents came within one (disputed) vote of denying confirmation to Daniel Manion, a poorly qualified, inexperienced lawyer who was placed on the 7th Circuit Court of Appeals in Chicago, just one judicial rung below the U. S. Supreme Court.


Schwartz admirably and straightforwardly traces this history, repeatedly noting that the conservatives made no secret of their desire to reshape the courts. By the time of the Bork nomination, the executive and legislative branches--as well as the country--were poised for a battle over more than this particular nominee.

National Plebiscite

“The Bork confirmation struggle became a national plebiscite on what Americans wanted from their Constitution and their courts,” Schwartz writes. “The most significant lesson from that experience was that despite the great popularity of a president eager to realize the right-wing social agenda by tilting the Supreme Court, Americans approved of what the courts had done to promote social justice and individual liberty.”

Schwartz makes short work of the claim that the Reagan judicial appointees favor “judicial restraint” rather than the “activism” of the liberal judges. He shows that both words are used when it’s convenient and abandoned when it isn’t. The “restrained” Reagan appointees can be just as activist when it comes to issues close to their hearts, such as reopening a long-decided civil rights case.


Eventually, Justice Anthony M. Kennedy got the seat that Bork had been nominated and rejected for. Whether he will turn out to be a Bork in sheep’s clothing remains to be seen. Schwartz makes abundantly clear that Reagan & Co. have tried very hard to remake the federal courts. Even if they have not succeeded completely, they have been very successful.

Schwartz argues persuasively that those who favor the rights of individuals over the rights of society should vote accordingly in the upcoming presidential election.

Dembart, a Times editorial writer, will be a first-year student at Stanford Law School in September.