WHEN PRESIDENT Reagan made headlines last fall by pledging to use the rest of his tenure to appoint judges who practice "judicial restraint," he meant something very different from the common legal usage.
The president holds that courts should play a much more limited part in American governance than they have in the past generation, and he favors judges who will take extreme measures in order to cut back their role. Instead of judicial restraint -- that is, the careful exercise of judicial power -- a more apt phrase for the Reagan standard might be "judicial retrenchment."
Five years after Ronald Reagan took office, there is a wealth of evidence showing how his appointees have already revised the concept of judicial restraint. The evidence shows that judges picked by the president depart from the practices of restraint in important cases to enact their vision of the separation of powers among the branches of government. As Philip Kurland, a pillar of old-fashioned restraint at the University of Chicago Law School, put it recently, "Judges are being appointed in the expectation that they will rewrite laws and the Constitution to the administration's liking. Reagan's judges are activists in support of conservative dogma."
The evidence also shows that the Reagan executive branch regularly urges the judiciary to act in an unrestrained manner. The administration's drastic legal goals are often tied to its social agenda.
To the Reagan administration and its judges, judicial restraint has become a rallying cry for an overhaul of the federal system. It is a code for a bold effort to remove authority from judges and re-balance the Constitution's separated powers. Sometimes it is just a call for results. In many cases, it means almost anything but what it has meant traditionally.
This is not because there are no legal grounds for the administration's efforts or for the opinions handed down by Reagan judges. There usually are. But the old limits of restraint have been breached in the struggle to remake the law, in an era when legal scholarship suffers from what U.S. Circuit Court Judge Richard Posner -- a Reagan appointee -- calls "unprecedented political polarization."
In an internal Justice Department memo revealed at Senate hearings, for example, Assistant Attorney General William Bradford Reynolds was blunt about the grounds for the administration's push to legalize prayer in schools. Referring to a couple of landmark decisions that the Reagan team has attacked, he wrote, "Our position in the Supreme Court must be crafted in such a way as to make abundantly clear that we view Schempp and Engel as wrong and unworthy of respect."
Although overturning such key precedents would not in and of itself violate the doctrine of restraint, the methods advocated by Reynolds and others in the Reagan administration clearly would. They would simply -- in effect overnight -- overturn prior decisions they believe are wrong without gradually laying the legal groundwork; they also would refuse to apply the principles at the core of those precedents to new cases.
Solicitor General Charles Fried, who represents the government in the Supreme Court, explained the administration's logic at a seminar sponsored by a New York think tank called the Manhattan Institute: "If you are to respect other institutions, be less activist, and adhere to precedent, you're going to be stuck with many ill-conceived legal decisions which occurred between 1960 and 1980." Justifying "a dose of negative activism," he went on, "judicial restraint may require judges to be faithful to a lot of things which, in the abstract, don't deserve fidelity."
The administration's departures from restraint don't stop at judicial appointments and court pleadings. When judges fail to go as far as the Reagan team proposes, the administration sometimes enforces the law as it sees fit -- especially where an item on the social agenda is at stake.
In a case from Memphis, Tenn., for example, the Supreme Court held that firemen hired through affirmative action should be laid off before those with seniority. Contrary to the interpretations of all federal courts of appeals that have since relied on the holding, Reagan officials treated the Memphis opinion as a death blow for affirmative action across the country. The Justice Department pressed 51 local governments to gut their affirmative-action programs by trying to undo consent decrees previously worked out by elected officials and judges.
Many cities, some led by Republicans, fought the Justice Department in court. Last month, a federal judge in Birmingham, Ala., upheld that city's plan to hire and promote blacks and women over white men and crisply rejected the administration's attack. A judge in Buffalo, N.Y., did the same and was firmly upheld by a court of appeals.
The definition of restraint used by some members of the president's team makes plain the political impetus for the Reagan revision. Bruce Fein, a former official at the Reagan Justice Department, explained in an article in The Los Angeles Herald Examiner that "judges wedded to the doctrine of judicial restraint" means "judges who reject the idea underlying the Supreme Court's decrees on abortion, school prayer, civil rights and criminal law which is that the judicial power of interpretation is not confined to carrying out the intent of our constitutional authors." Fein's choice of examples indicates that the administration's rallying cry of restraint is often just a call for results.
The Reagan revision is striking because the concept of judicial restraint has a well-documented history. The great debate in American law has centered on the power of judges. The Constitution makes no mention of the Supreme Court's authority to rule on the lawfulness of acts of Congress, the president and the states, but scholars have long agreed that the court has the power and that it derives from that fundamental law.
Yet legal thinkers disagree about the proper bounds of judges' review, and the opposing views reflect a deep conflict about the role of courts in this democracy. One side sees judicial review as a simple but crucial part of a system of checks and balances whose distinction comes from its ability to protect the freedoms of minorities from the tyranny of the majority. The other side sees it as what the late Yale law professor Alexander Bickel called "a deviant institution" that can undermine the ultimate freedom, the freedom of the majority to govern.
To ease the tension between judicial review and the majoritarian strain in American government, lawyers and judges have turned to the practice of judicial restraint. Justices John Harlan and Felix Frankfurter, along with federal judges like Learned Hand, composed memorable lines of explanation.
"The Constitution does not confer on the court blanket authority," Harlan offered. Courts shouldn't serve as "super-legislatures" nor judges as "a bevy of Platonic Guardians," wrote Hand. "There is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power," declared Frankfurter. "The framers carefully and with deliberate forethought refused so to enthrone the judiciary."
Harlan, Frankfurter and other jurists, defining restraint, constructed modern canons to limit the power of judicial review:
The Supreme Court and other federal courts should defer when possible to the judgments of democratically-elected bodies, they said, from the Congress down to local school boards. Since the states are the foundation of the Union, and the Constitution draws its power from them, the courts should defer to state and local government over federal authority. Exercising passive virtues, the judges went on, courts should decide no case unnecessarily. When they do rule, they should do it on the narrowest available grounds and avoid constitutional issues whenever possible. Except in extreme instances, they should keep the law consistent and avoid rash decisions by following precedent. Judges should narrowly interpret all sources of law, including cases, statutes and the Constitution itself.
In some eras -- when backers of President Franklin Roosevelt wanted the Supreme Court to stop striking down New Deal laws -- liberals have embraced restraint. But in this generation, judicial restraint has been an instrument of conservatism -- wielded to protect the authority of judges in the careful, gradual evolution of the law. Advocates of traditional restraint objected to what they saw as the judicial activism of the Warren Court in the 1950s and '60s, when the court used the law as an instrument of social change.
The administration's record shows how its dedication to the Reagan agenda eclipses its commitment to safeguard the judicial process. Many lawyers think the Reagan team seeks to limit the power of judges solely as a pretext for achieving results.
Soon after the administration took office, for example, its lawyers challenged the legality of busing as a remedy for segregation in the Seattle schools. The case featured White House involvement, a challenge to an elected local school board and a flip-flop of Justice Department policy.
The Seattle school board had taken a lead from the Supreme Court in an earlier case and voluntarily approved a plan for busing. When the voters of Washington passed a referendum to ban it, the school board challenged the legality of the referendum. During the Carter administration, the Justice Department supported the school board's successful defense of the plan at trial and on appeal. When the Reagan team came in, the White House leaned on the Justice Department to drop this support.
As Carl Stern reported for NBC News, Lyn Nofziger, then White House political chief, wrote to the Justice Department in a 1981 internal memo, "Surely if we are going to change the direction of this country, mandatory school busing is a good place to make changes -- as I thought we would do because I thought that was what the president wanted." The Supreme Court rebuffed the administration and upheld the busing plan.
The administration's efforts to convince the Supreme Court to overturn Roe v. Wade, which legalized abortion, show how far the president's lawyers are willing to go to fulfill his agenda and apply the law according to their standards. The passive virtues and respect for precedent appear to have no value when the case involves what Reagan-appointed Judge Robert Bork of the U.S. Court of Appeals for the District of Columbia calls "corrupt" constitutional law.
When the justices ruled on several abortion cases in 1983, they reaffirmed their decade-old landmark. Writing for the majority, the court's current model of restraint, Justice Lewis Powell, offered a lecture about stare decisis -- abiding by precedent. Yet this term, when another set of abortion cases came up, the administration ignored Powell's injunction.
As amicus curiae, or friend of the court, the government pressed for relief far beyond what parties in the suits had asked for. It rejected the tenet of restraint that the justices' duty is to resolve only the issues raised by the case before the court. Contending that the states instead of the federal government should regulate abortion, the administration dismissed the court's finding that women have a right to abortion and asked the justices to reverse themselves wholesale on constitutional law.
Prominent judges appointed by Ronald Reagan have also challenged accepted notions of restraint.
A recent issue of the University of Chicago Law Review considers the jurisprudence of Justice Sandra Day O'Connor. It concludes that her "approach transcends traditional judicial restraint: Not only should the court avoid ruling on substantive legal issues where possible, she holds, but the court should also interpret these issues, and the Constitution itself, so as to limit judicial intrusions upon the coordinate branches of government." The Review goes on, "Indeed at times she takes 'activist' positions in order to limit the scope of judicial power over the rest of the government." Some of her rulings are "radical limitations on the judicial role."
Another Reagan judicial appointee, who is a contender for the next court vacancy, supplied Justice O'Connor with a theory to justify her "radical" holdings. To Judge Richard Posner of the U.S. Court of Appeals in Chicago, judicial restraint should no longer be used to describe techniques for the careful exercise of judicial power. Instead, "restraint" must be something more aggressive.
"I believe judicial restraint refers to a policy of reducing the power of the federal courts vis-a-vis the other branches of government," he stated recently at a forum about the courts. To call this "restraint" amounts to doublespeak.
Posner has the courage of his convictions. He goes so far as to say it would be "restrained" to overturn Marbury v. Madison, the most important precedent in American law. The case affirmed the power of the Supreme Court to hold acts of Congress unconstitutional in 1803.
"A decision overruling Marbury v. Madison would be pretty wild stuff," he writes in his book "The Federal Courts," "but it would be self-restrained in my terminology because it would reduce the power of the federal courts vis-a-vis the other organs of government."
Posner leaves aside the likelihood that it would also require years of litigation to clarify the new holding and would shatter a foundation of judicial review -- the opposite of what traditional restraint aims for.
Judges Bork and Antonin Scalia of the U.S. Court of Appeals for the District of Columbia are also contenders for the next seat on the Supreme Court. Each has pledged allegiance to judical restraint, talking in familiar terms about the separation of powers.
"We appear to be at a tipping point in the relationship of judicial power to democracy," Bork warns, and he likes to quote G.K. Chesterton to suggest why the authority of courts should be cut in favor of Congress's: "What is the good of telling a community it has every liberty except the liberty to make laws?" Scalia stands watch for what he calls the "overjudicialization of the processes of self-governance," and when he spies it, he tries to reverse the trend. Yet both judges have been criticized for opinions that depart from the canons of restraint.
Bork and Scalia reveal themselves in rulings on technical points of law. Deciding about jurisdiction -- the power of courts to resolve cases -- the judges turn restraint into retrenchment. While Justice Frankfurter was cautious about extending the authority of courts, his would-be successors act as if they should cut back on the scope of review whenever the chance arises. To some legal observers, they seem bent on disabling the courts.
Attorney General Edwin Meese III is the main promoter of the administration's version of restraint. He makes his views clear in part through his recommendations for judgeships. His most egregious choice to date may be a legal scholar named Lino Graglia, who is controversial not simply because he used the word "pickaninny" in class at the University of Texas Law School.
Graglia was considered during the first Reagan term for chief of the Justice Department's civil rights division but was vetoed by then-Attorney General William French Smith as "too extreme." This term, however, he was proposed by Meese to serve as a federal appeals judge -- but found twice by the American Bar Association to be "not qualified." Despite such criticisms, the administration is still debating whether to send up his nomination for Senate confirmation.
Reagan administration officials like Graglia because he is as provocative an advocate for their views as any legal scholar in the country. In a National Review article entitled "Was the Constitution a Good Idea?" (implying no) he held that constitutional review should be abolished. When a federal court ordered busing as a remedy for school desegregation in the city where he lives, reports National Public Radio's Nina Totenberg, Graglia wrote an ad that was widely read as urging the public to disobey the law.
Grover Reese III, the attorney general's counsel for judicial selection, says that Graglia honors the law but is "guilty of insufficient reverence for the courts." That irreverent attitude apparently is a plus for the administration.
One judicial nomination that could be even more controversial than Graglia's would be that of Meese himself. In recent months, he has been mentioned frequently as a possible Reagan Supreme Court candidate. A Meese nomination would confirm how far the president has wandered from traditional restraint.
Meese's skepticism about the doctrine of incorporation, by which key provisions of the Bill of Rights are applied to the states, is now well-known. Revoking the doctrine would repudiate the canons of restraint by overturning three generations of major precedent. It would cause a revolution in American law.
The attorney general has proposed a number of other sweeping notions: an increase in the president's power by giving him more authority over regulation, or, now, deregulation, and abolishing the independent agencies; a view of criminal law that would wipe out constitutional rights even the conservative Chief Justice Warren Burger calls fixed; a vision of federalism based on what mainstream scholars call a far-reaching change in the role of the Supreme Court.
The attorney general's attacks on the Supreme Court help explain the administration's revision of restraint. The Reagan onslaught is often justified by the conviction that the activist liberal judging of the Warren Court continues unabated. Justice Department spokesman Terry Eastland wrote in Policy Review that the Burger court has "compiled a record of judicial activism that rivals its predecessor's."
By many lights, this observation is nonsense. The Burger court may have moved to the right "by hook or by crook," as Justice Harry Blackmun put it, and the court is now decidedly more conservative and generally less activist than it was two decades back.
Yet this straw man serves the administration's ends. It allows the Reagan team to avoid engaging hard legal questions about its version of restraint. If the courts and other officials take whatever steps they choose to undo the deeds of previous Supreme Courts, how will they know where to stop? Having given up traditional restaint to accomplish their ends, what will be left to discipline their judgments?
Like so much else in modern conservative thinking, the Reagan approach defines itself in reaction to perceived excesses of liberalism. In adopting its own legal notions, the administration has transformed a distinquished conservative tradition. It has turned judicial restraint into a new form of activism.