CONSERVATIVES HAVE been quietly gleeful about what they think the recent election means for the Supreme Court. With Ronald Reagan as president, Strom Thurmond as Senate Judiciary Committee chairman and five justices 72 or over, they are daydreaming about a "strict constructionist" High Court at last -- perhaps even a court on which Justice Rehnquist is a swing vote.
They may be in for a surprise. Reversing the court's current activism may prove about as easy, and about as likely, as undoing the New Deal. In any case, whether Supreme Court activism is curbed may well depend more on who does the arguing before the court than on whether Ronald Reagan will be naming justices to his liking.
Who does the naming, after all, guarantees nothing. Seven of the nine justices now on the Supreme Court were appointed by Republican presidents. More to the point, four of the five justices 72 or over were appointed by Republicans, by President Nixon after an exhaustive search for "strict constructionists." Despite this, from abortion to the death penalty, the justices of the Burger Court have shown a remarkable, if erratic, willingness to find their own values enshrined in the Constitution.
Although widely labeled a conservative court, perhaps because of its coolness tdo novel First Amendment theories, the Burger Court's record tells a different story. From 1970 through 1978, the Burger Court decided over 160 cases holding state laws unconstitutional. In contrast, at the height of Warren Court activism, from 1960 through 1968, the court decided only 120 such cases.
It was the Burger Court that turned the law of the family into a consitutional minefield. In 1973 the Burger Court found in the Constitution a right to have an abortion. In 1976 it found that the Constitution protects a woman's right to an abortion even when the father wants to save his child's life. In 1977 the court ruled that the Constitution guarantees children under 16 the right to buy contraceptives.
It was also the Burger Court that gave us busing for school desegregation.
It was the Burger Court which found that aliens have a constitutional right to practice law, to hold state and local civil service jobs and to obtain state-funded scholarships. It was the Burger Court that found the long-standing practice of firing holdover political appointees unconstitutional.
Neither President Reagan nor Sen. Thurmond is likely to stem this tide of judicial activism. To begin with, they have no assurance that any members of the court will step down soon. Indeed, if any two people have reason to appreciate the vigor and ability of men in their early 70s, it is the 70-year-old president and the 78-year-old senator.
Then, too, Supreme Court appointees are notoriously independent once they take their seats, and the Reagan record of past judicial appointments suggests that he is no more prescient than the Republicans who appointed Chief Justic Warren, Justice Brennan and Justice Blackmun. When he was governor, for example, Reagan named Donald Wright Chief justice of the California Supreme Court. Within two years, Wright had written opinions declaring California's death penalty cruel and unusual punishment and striking down most of California's restrictions on abortions.
With all these contingencies it is unlikely in the extreme that the new president can or will suddenly halt the trend toward substituting the judiciary's judgments for those of elected officials.
The nation would do well, then, to look more closely at the other reasons for the court's continuing activism. The one reason that is most often overlooked is also the simplest -- those who want an activist court have out-lawyered those who don't.
Courts resolve great issues in the context of particular cases between individual litigants and individual lawyers. In this adversary system, bad lawyers make bad law for more often than hard cases do.
When the Supreme Court is asked to hold a law unconstitutional, the parties, their positions and their lawyers are usually fiarly predictable. In countless landmark rulings, the case for judicial restraint has been made by a lawyer for a state or local agency. Attacking the agency's action and advocating judicial activism has been an attorney for an individual, a class of individuals or, more rarely a corporation.
Perhaps there was a time when this match-up gave the government bodies an edge. No more. Since Brown v. Board of Education, the advocacy bar has grown astoundingly in size and sophistication. The trail blazed in Brown by the NAACP Legal Defense and Educational Fund has been followed by countless others, many of whom borrowed the name as well as the strategy (the Mexican American Legal Defense and Educational Fund, the Asian American Legal Defense and Educational Fund, the Puerto Rican Legal Defense and Education Find, to name only a few). These groups and others like them are now among the most perceptive and vigilant students of the Supreme Court in the nation.
A glance at Supreme Court filings tells the tale. In Brown , only five amicus curiae (friend of the court) briefs were filed by groups seeking to overturn state laws establishing segregation. A quarter century later, in Bakke, advocacy groups churned out more than 35 amicus briefs opposing Bakke's attack on affirmative action in college admissions -- a 700 percent increase.
The lawyers who represent state and local governments before the High Court have not shown a comparable growth in numbers or sophistication. In fact, most observers (and perhaps even a few of the justices) would readily agree that, of all the institutional litigants appearing regularly before the Supreme Court, state and local governmentes consistently present the weakest legal defenses. There are some eminent exceptions to this rule (most notably the former attorney general -- now senator -- for the state of Washington, Slade Gorton), but the rule remains. s
The reasons are fairly clear. Supreme Court practice is a demanding and subtle specialty. State and local government lawyers, underpaid and overburdened with everyday litigation in local courts, have little leisure to follow trends in the Supreme Court's cases or shifts in the views of individual justices. State attorneys general can seldom resist the honor (not to mention the media exposure) associated with oral argument before the Supreme Court, even though the staff attorney who wrote the brief may be far better versed in both the record and the law.
Perhaps most importantly, state and local government lawyers seem to lack the sense of strategy and continuity that is the hallmark of the best legal defense groups. The measure of a successful institutional advocate is not simply how many cases he wins or loses. Only rarely can even the best lawyers turn a losing case into a winner. The test is how he wins or loses. When the case has bad facts, a skillful institutional advocate manages to lose the case on the facts; when it has good facts, he manages to win on a broad principle.
Bakke again provides an apt example: The legal defense groups lost that case -- Bakke was admitted to medical school -- but they lost it on grounds that permitted universities to reshape their admissions procedures without in fact altering the racial and ewthnic makeup of their incoming classes. In the end, Bakke proved to be a sort of "Pyrrhic defeat" for supporters of affirmative action.
This imbalance should be of concern not merely to ideologues in search of ways to rein in the Supreme Court -- at least in areas where the court rules for the other side -- but to those of us who are troubled by Supreme Court decisions based on insufficient records. Whatever the outcome of individual cases, the nation can be served well only when the clashing principles at stake are fully and intelligently developed on each side.
This imbalance need not exist, as the example of the federal government shows. The United States is represented in the Supreme Court by the solicitor general's office. This small, elite office's expertise is not in a particular subject matter but in appellate advocacy, particularly Supreme Court advocacy. Staffed with the brightest recent law school graduates and a leavening of experienced advocates, it produces crisp, concise briefs and solid, effective, oral arguments. And it produces results. c
The solicitor general is the only institutional advocate whose views are regularly requested by the High Court even when his office has not filed a brief. The office's professional record is head and shoulders above that of state and local advocates. From 1970 through 1978, at the same time the Burger Court was deciding 160 cases invalidating state laws, it decided only 20 cases striking down federal laws.
There are many reasons for that record, but if I had a lawyer who lost eight cases for every one that his competitor lost, I would certainly give a lot of thought to taking my business elsewhere.
Of course the states shouldn't fire their attorneys general and retain the solicitor general. But they could follow the examples of the federal government and the "individual rights" bar by pooling their resources to create a small specialized office oroganized along similar lines -- a "Federalism Legal Defense and Education Fund." The office could act as an insitutional advocate for state and local interest, providing legal advice, filing amicus briefs, and presenting oral argument on behalf of state and local governments involved in Supreme Court cases.
Evening up the balance of legal talent in constitutional cases won't guarantee a revolution in the Supreme Court's jurisprudence, any more than the Reagan presidency or the Thurmond chairmanship will. But it does mean that the case for both sides will at least be made well and consistantly. In the long run, that might have a larger influence on Supreme Court decisions and on the course of the nation than any appointments Ronald Reagan may make.