THEY CAN READ THE RETURNS:

Can Bush Deliver a Conservative Supreme Court? (JEFFREY ROSEN, 11/14/04, NY Times)

By promising to appoint strict constructionists, Mr. Bush has embraced the mantra of every Republican president since Richard Nixon, who first made that promise in his 1968 campaign. Yet Republican presidents have largely failed in their efforts.

In the last 36 years, four Republican presidents have appointed all but two of the current nine justices.

But on the most contested social issues - abortion, affirmative action, school prayer and gay rights - the court has sided with liberals, while only modestly advancing the deregulatory agenda of the Republicans.

"If the goal of Republican presidents was to build a court that exercised its own power with greater restraint or adhered strictly to the original constitutional text, then they have clearly failed," said Thomas Keck, a political science professor at Syracuse University and author of "The Most Activist Supreme Court in History."

Can President Bush do better than his predecessors? There is every reason to believe he can. Over the last three decades, the definition of "strict constructionism" has been refined to coincide more precisely with the political goals of its adherents, allowing fewer surprises among a conservative farm team of lawyers and judges. [...]

In 1995, Douglas Ginsburg, a federal appellate judge whom President Reagan tried unsuccessfully to nominate for the Supreme Court, wrote an article calling for the resurrection of what he called "the Constitution in exile," by which he meant strict constitutional limitations on federal power that were abandoned after the New Deal. In that article, Mr. Ginsburg wrote that he never expected these forgotten doctrines to be resurrected in his lifetime.

But his article coincided with the beginning of the so-called federalism revolution on the Rehnquist court. In 1995, for the first time since the New Deal, the court said there were limits on Congress's power to regulate interstate commerce. And since then, the court has struck down 33 federal laws. During its first 70 years of existence, the court invalidated only two.

Nevertheless, the federalism revolution hasn't quite delivered what conservatives hoped. Each time the court's strict constructionist justices have appeared on the brink of striking down environmental laws or health and safety laws, the moderates, Justice O'Connor and Justice Kennedy, have stepped back from the brink. They are less willing to overturn 60-year-old precedents that might strike at the core of the regulatory state.

"If the 'Constitution in exile' were taken seriously, a lot of environmental regulation could be under attack, occupational safety and health regulation, even possibly some securities regulation," said David Strauss, a law professor at the University of Chicago. "Minimum wage and maximum hours laws? You never know."

Today, when President Bush says he wants to appoint strict constructionists, he seems to have in mind justices who subscribe to the "Constitution in exile" movement. Indeed, former administration officials say all of the names on Mr. Bush's short list for the Supreme Court are considered strict constructionists who are closer to Justice Scalia than to Justice O'Connor.

"An entire generation of lawyers have been reared and trained in Justice Scalia's philosophy," said Jack Goldsmith, a professor at Harvard Law School, who led the second President Bush's Office of Legal Counsel after Mr. Yoo. "So the Bush administration is likely to be more successful than its predecessors in finding reliably conservative nominees."

As important as any of this is that the Court is fundamentally just a political institution, one that generally conforms to electoral and social trends, and a human institution, with Justices who don't want to be unpopular. During the 70 years that Democrats dominated Washington the path of least resistance was to endorse liberal activism. Now that control has shifted back to Republicans the Court will move Right regardless of who's on it.

Posted by Orrin Judd at November 13, 2004 1:08 PM