"During the past year," begins the leading article in the Harvard Law Review's annual appraisal of the previous term of the Supreme Court, "individual freedom, the hallmark of liberal democracy, lost ground to state control. . . The state has the power, the court held, to regulate, restrict, abolish or criminalize individual liberties that run contrary to the popular will."
No argument about that. The Rehnquist Court, more than its recent predecessors, believes majorities may determine what rights to grant minorities, and each term it makes that clearer.
The author of the HLR's article, Robin West of the University of Maryland School of Law, adds to this an intriguing and somewhat novel argument addressed to her fellow liberals.
She urges them "to embrace a responsibility- rather than a rights-focused liberalism." Since "the popular will" this Supreme Court would allow to determine how far individual rights should go is "hostile" to civil liberties, liberals must "rethink their insistence on the primacy of rights and their concomitant failure to develop an understanding of the individual civic responsibility necessary for the maintenance of a liberal society," she writes. "The liberal values of tolerance, plurality and diversity may be weakened, not strengthened, by taking rights so 'super-seriously' that we come to stop examining our sense of responsibility."
But how are liberal jurists to do that in a judiciary increasingly dominated by non-liberals? With dissenting Supreme Court opinions, Professor West says. The court will be more conservative this term than last. Justice William Brennan has been replaced by Justice David Souter, who may not be as conservative as conservatives hope, but to the right of the liberal champion Brennan.
HLR's statistics show that in 1989-90 the liberal bloc including Brennan won 14 of the 39 cases decided 5-4. It would not be surprising if in next year's statistical review, the Brennan-less liberals won none or almost none of such close cases.