Real Conservatism on the Court


The Supreme Court that just ended its term delivered a number of important decisions -- forbidding prayer in school, upholding free speech even of the noxious kind, saying police may not pressure citizens to break a law in order to prosecute them, requiring states to take affirmative steps to end college level racial segregation, vetoing racist jury selection by defense lawyers, allowing states to forbid write-in votes and suggesting governments may have to pay for property whose value is reduced by environmental regulations.

These and the other of the 108 decisions of the term were all overshadowed by the court's ruling in an abortion case. This was supposed to be the year Roe vs. Wade was overruled. Ronald Reagan and George Bush vowed to accomplish that by their nominations to the court. This term for the first time a majority of the justices were Reagan-Bush appointees. But the court by a 5-4 vote, with three Reagan-Bush appointees voting in the majority and jointly writing the court's opinion, upheld Roe with slight modifications along the lines that Justice Sandra O'Connor, a Reagan appointee, has been advocating for years.

She and Justices Anthony Kennedy (Reagan) and David Souter (Bush) are being described as the "moderate" core of the court. That suggests a twist on the old joke. "Q. 'How's your wife, Mr. O'Connor?' A. 'Moderate.' Q. 'Compared to whom?' " For the fact is, these are three unmistakable conservatives of the old school. Only compared to such judicial activists and ideologues as Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas could Justices O'Connor, Kennedy and Souter be labeled "moderate."

They showed the true mark of conservatism in their abortion opinion. In addition to identifying the constitutional principles that support their decision, the three also emphasized "the principles of institutional integrity and the rule of stare decisis." The latter is legal jargon for obeying precedents. "No judicial system could do society's work if it eyed each issue afresh in every case that raised it. Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable," the justices said.

This is in the conservative tradition of Justices John Marshall Harlan (Mr. Souter's role model), Lewis Powell (replaced by Mr. Kennedy) and Potter Stewart (replaced by Mrs. O'Connor). Mr. Stewart is quoted pertinently in this trio's abortion decision: "A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the government. No misconception could do more lasting injury to this court and to the system of law which it is our abiding mission to serve."

Nothing is more solidly conservative than a respect for the law's continuity and a desire to keep the Supreme Court respected.

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