THE PENDULUM OF POLITICS

Kevin Phillips is the publisher of the American Political Report and Business and Public Affairs Fortnightly

Bet on it. The 1990s are going to be a decade when U.S. culture and politics will be changed enormously by a small, black- robed elite that Americans often love to hate--federal judges. Crime, abortion and civil rights will be the great banners and battlegrounds, with a little sex and religion on the side.

Republicans who once foamed against the federal courts will be figuratively lining up to kiss the hem of Chief Justice William H. Rehnquist's robe, while liberals who spent the '60s and '70s idealizing judges may spend the 1990s bashing them. It's all as American as apple pie.

The irony, however, is that the culture and ultimate politics should go in different directions. The Supreme Court's expected further rightward tilt, as George Bush appoints additional conservative justices, already has the NAACP threatening a new era of civil disobedience, while stalwarts of the American Civil Liberties Union see dark days ahead for Constitution and Republic alike. The fear rhetoric is exaggerated, but conservatives may well succeed in making more law through the courts over the next 10 years than they did by legislation during the '80s. In an anti-permissive sense, the '90s are shaping up as a Richard M. Nixon-Ronald Reagan kind of decade, a delayed flowering of the court appointments those men made in the '70s and '80s.

In partisan political terms, though, liberals may eventually reap the benefit--and the seeming divergences are inter-related. That's because the federal judiciary in general--and the Supreme Court in particular--are among the most notable lagging indicators of U.S. politics. If liberals can validly indict the cultural, criminological and jurisprudential excesses of a conservative Supreme Court circa 1992, they can take Americans' minds off yesterday's linkage of liberal politics with campus rioters, mugger-loving judges, flag-burners, school-busing zealots, furloughed criminals, militant feminists and the like. If this list seems unfair, Republican National Chairman Lee Atwater has crammed even more in a 45-second TV commercial or a single paragraph of a fund-raising letter. The next election may have new bogymen.

Conservatives, in fact, began their national political ascent with a mirror-image opportunity roughly 25 years ago. As liberal ideology and judicial power crested in the last real years of Democratic national power--from 1965 to 1968--the popular reaction was negative. Indeed, voter resentment of social engineering and the new permissiveness was strong enough to push aside lingering imagery of the early '60s--when conservatism often seemed to stand for Birmingham sheriffs with police dogs, presidential candidates with an itch for atom bombs and politicians opposed to federal aid to education, and maybe Social Security, too. Yet not only did George Wallace, Nixon and Reagan successfully lambaste liberal criminology and sociology, they attacked the federal judges who propounded it and promised to replace them. The rest is history--and GOP dominance of the White House for the last two decades.

But the same history sheds a different predictive light on the 1990s. A quarter century ago, when liberal judges started overreaching, the United States was near the end of the Democratic era that began with Franklin D. Roosevelt in 1932. Three decades of largely Democratic appointments had produced unprecedented liberal control of the judiciary. In much the same fashion, conservatives are now building toward a nearly equal predominance.

Keep in mind that when Bush's term is up in January, 1993, Republicans will have held the presidency for 20 of the previous 24 years. Hardly anyone expects Bush to appoint many ideological zealots--Reagan, by and large, has already taken care of that. It's now sufficient for Bush to appoint moderate conservatives--what strategists on the right call "80 percenters." Consider the Supreme Court, where conservatives already seem to have a fairly reliable five-to-four majority. Of the four non-conservatives, three are 80 years old or more--Justices Thurgood Marshall, William J. Brennan Jr. and Harry A. Blackmun. So Bush will probably have the chance to replace one or two, insuring a conservative majority for the foreseeable future.

This is, in fact, one of American history's most intriguing patterns. No party or ideology ever dominates the court so completely as at the end of each of the cycles that divide--uniquely among major Western nations--U.S. political history. Similarly, bitterness at the other side's stranglehold on judges and judicial interpretive power never swells so strong as when a new party is taking over the White House--the Jeffersonians in 1801, the Republicans in the Civil War era, Roosevelt and the Democrats in 1933, Nixon and the Republicans in 1969. All these new White House arrivals, in turn, tried to uproot, replace or circumvent the outgoing party's entrenched judges. Roosevelt even tried, unsuccessfully, to "pack" the Supreme Court in 1937, a tactic likely to tempt any Democratic President elected in 1992 or 1996.

The other side of the coin is that judge-baiting is a proven, effective political theme. In the 1960s, when conservatives printed bumper stickers calling for the impeachment of Chief Justice Earl Warren, conservative activists were dismissed as "little old ladies in tennis shoes." But they foreshadowed an important political upheaval. Within a few years, we may see women in professional organizations and welfare hotels alike calling for Rehnquist's impeachment and that, too, would be significant. Just as a lopsided entrenched federal judiciary is a lagging indicator, the rise of a substantial populist insurgency against the federal courts has been an important leading indicator.

It is not hard to imagine another such insurgency during the 1990s. For the moment, public opinion is divided. On many issues, especially involving crime, the trend is still conservative--the Supreme Court's recent Texas vs. Johnson case, upholding flag-burning as an expression of free speech, angered the electorate because it expressed insufficient ideological conservatism. At the same time, late June and July national polling by the Los Angeles Times and KRC Research found growing disapproval of the court. The Times charted a 40% favorable versus 34% unfavorable assessment, while KRC found voters disapproving by 45% to 37%.

The Webster decision on abortion, in particular, is already a serious negative for Bill Rehnquist and the Supremes. The Los Angeles Times' July 3 poll, taken immediately after the court's ruling, turned up a 47% to 40% plurality in support. By July 5, however, a USA Today survey found opinion shifting to a 50% to 40% majority against the Webster decision; by July 6-7, a Gallup-Newsweek sampling found still further erosion--a 53% to 37% majority registered disapproval of the Supreme Court's views on abortion.

Two decades ago, social engineering was what helped turn many citizens against liberal jurisprudence; conservatives may now be surprised to discover how many contemporary Americans, especially women, feel a similar threat from judicial involvement in the ethics of childbirth.

Abortion is just one area, though probably the most important, where popular discontent with judicial conservatism may fester. Tough approaches to crime win applause today--but decisions reaching beyond public opinion could come in the future. Civil rights could also be divisive, especially if further "colorblind" decisions, that many white voters now applaud in the abstract, impel the NAACP and other minority organizations to orchestrate boycotts and civil disobedience little seen since the late '50s and early '60s.

Then too, should the United States somehow slip into a severe economic downturn in the years ahead, conservative economic rulings by the Supreme Court--conceivably invalidating federal programs or even taxes--could become inflammatory again just as they did in the 1930s when Roosevelt Democrats railed against court decisions by the "nine old men" that invalidated New Deal programs as unconstitutional.

Human nature is not easily changed. Conservative judges are as likely to pursue extremes of dogma and arrogance as their predecessors.

The backlash could foreshadow a new politics. Liberals may even find themselves re-enacting the more successful--and more vigorous--politics of bygone eras. After all, judge-bashing was one tactic that helped such Presidents as Thomas Jefferson, Andrew Jackson and Roosevelt carve out eras of Democratic Party national supremacy--not a bad list of new heroes for a party that's lost five of the last six elections and needs to recapture its old verve.

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