The Liberal Agenda Will Have a Long Wait : Supreme Court: It’s been conservative for a decade. But Reagan appointees are moving it toward the reactionary.

It’s not yet “official.” US News and World Report says that it is too soon to know whether conservatives control the Supreme Court. Time magazine thinks it has already, finally, happened.

Yet the court has been dominated by Republican appointees for well over a decade. Since 1975, seven of the sitting justices have been appointed by Republican Presidents. One of the Republican appointees, William J. Brennan Jr., has voted like a Democrat, while one of the Democratic appointees, Byron R. White, has voted like a Republican. The only changes on the court since 1975 have involved the replacement of Nixon appointees (and an Eisenhower appointee) with Reagan appointees.

More than 20 years have elapsed since a Democratic President appointed a justice to the U.S. Supreme Court. For most of those years, Justice Lewis Powell, a Nixon appointee, was at the center of the court. Powell’s overall voting record was conservative and thoroughly consistent with the general views of Richard M. Nixon. Nixon was pro-business, pro-law enforcement and a moderate on civil rights. So was Powell. His views were solidly within the Nixon wing, now the George Bush wing, of the Republican Party.

Why then have journalists and law professors failed for so long to recognize the obvious conservative character of the court? The failure stems in part from Nixon demonology. Liberals genuinely believed that Nixon was the devil and feared that with a Nixon Court the sky would fall.

It then came as a surprise that Powell (who usually voted with William Rehnquist, now chief justice) would sometimes vote to uphold a constitutional right’s claim. Powell had an open mind. He could be persuaded in cases where the need for compassion was clear. Moreover, like Nixon, Powell was a pragmatist.

As Court of Appeal Judge J. Harvie Wilkinson (a former Powell law clerk) puts it, “The (Powell opinions) testify both to a strength and a weakness in a jurist, the strength being that of an open mind and heart, the weakness being that of cautious case-by-case adjudicationthat leaves law bereft of general guidance and sure content.”

The sky-is-falling, rights-will-never-be-upheld-again expectations were ludicrous from the start. Only against that preposterous base line has the Republican’s Supreme Court been anything other than conservative.

Issues of economic justice are off the docket of the Supreme Court--except when it comes to the property rights of the well-to-do. The environment is rarely a subject for the high court’s inquiry.

Instead the questions that have dominated the Supreme Court docket over the years include cases that lead us to wonder: What limits should be placed on affirmative action? How much should we constrict the abortion choice? To what extent should religion occupy a more prominent place in public life? How should we administer the death penalty? How can we prevent frivolous rights claimants from clogging our courts? How can we restrain the excessive zeal of those lower court judges who intrude into the management of prisons, schools and other non-judicial institutions?

These questions preoccupy conservatives. Liberals would think some of them not even worth asking. But they are difficult questions, and conservatives can fairly be expected to disagree over cases bearing on their resolution.

If liberals had dominated the court, the questions would be quite different.

For example, how can we assure that administrative agencies do more to comply with and enforce legislation crafted to bring about a cleaner environment, or a safe, non-discriminatory workplace where employees are genuinely free to speak out?

How can we assure that disadvantaged groups come closer to the promise of equal citizenship? What steps can be taken to curb the excesses of bureaucrats who are insensitive to their constituents’ needs?

These questions engage liberals. But they are not prominent on the Supreme Court agenda and will be less prominent in the foreseeable future. We have finally moved from a Nixon Court to a Reagan Court, from the middle of the Republican Party to its right, away from the conservative and toward the reactionary. The conservatives may prevail over the reactionaries--but a court with liberal questions is far away.

The sky is not falling, but it’s turning from gray to dark.