Essay: Radicals in Conservative Garb

When President Reagan nominated William Rehnquist as Chief Justice and Antonin Scalia to replace him as Associate on the Supreme Court, he explained that he wanted judges who would be "attentive to the rights specifically guaranteed in our Constitution and the proper role of the courts in our democratic system." On the surface that remark certainly seemed both reasonable and moderate, a respectful back-to-basics prescription for the high court. To a host of legal scholars, Democratic politicians and aroused liberals who saw beneath the surface, however, the words meant something else altogether. The President, these critics complained, was wrapping himself in the Constitution while trying, in the words of Julius Chambers, director of the NAACP Legal Defense and Education Fund, "to impose his own narrow ideological views onto the Supreme Court."

As those critics perceived it, the Rehnquist and Scalia nominations were part of the Administration's long-running assault on the court to reverse decisions the White House regards as too meddlesome with the law and too liberal in their interpretations of the Constitution. Attorney General Edwin Meese III stepped forward as point man for the assault last summer and, in the year since, has lambasted the high court as few of his predecessors have ventured to do.

He pronounced "constitutionally wrong" the 1973 Roe vs. Wade opinion that overturned a state-court ruling against abortion.

He ridiculed the "bewildering Catch-22 logic" behind the 1985 Aguilar vs. Felton decision forbidding public school teachers to instruct in parochial schools. He remarked that the court's generally high level of neutrality between what he called religion and irreligion (e.g., barring prayer in public schools) would have struck the framers of the Constitution as "bizarre."

He has urged "doing away with Miranda," the 1966 ruling that criminal suspects must be advised of their right not to answer questions, and he has denounced the 1961 Mapp vs. Ohio verdict blocking the use in a trial of illegally seized evidence. Such judgments aid only the guilty, he said, insisting, "You don't have many suspects who are innocent of a crime."

He damned as "intellectually shaky" the bedrock concept, first defined by the court 60 years ago, that the 14th Amendment applies key provisions of the Bill of Rights to the states, and not just to federal cases.

Such "infamous" policy decisions, declared Meese, amply prove that some < judges have been using the Constitution "as a charter for judicial activism on behalf of various constituencies." The proper role for the judiciary, he said in a climactic scold, is to guard the Constitution, not tamper with it.

The President has also made it clear that he disapproves of the court's tendency to indulge in what he calls social experimentation. Because "the Founding Fathers knew that . . . the power of the judiciary could be abused," said Reagan last fall, the framers crafted a meticulously worded Constitution whose instructions must be strictly followed according to the spirit in which they were first written, and not interpreted to conform to "anyone's personal view of utopia." Under this presidential reasoning, since the Constitution does not specifically mention, for example, abortion, the Supreme Court has no right telling anyone, including the states, what to do about it.