A Court Remade in the Reagan Era's Image

Conservative lawyers in the administration of President Ronald Reagan had an ambitious agenda. They wanted the courts to pay closer attention to the Constitution's text, to fashion a more limited role for the federal government, to allow religion to have a larger presence in public life, to use skepticism in reviewing race-based classifications in the law and to stop the expansion of protections for criminal defendants.

Many of those ideas, considered bold, and even extreme, at the time, have entered the legal mainstream and now routinely serve as the basis for decisions of the Supreme Court. That means that the Supreme Court's two newest members, both alumni of the Justice Department in the Reagan years, will, if they follow the agenda they helped create back then, largely be consolidating a victory rather than breaking new ground. ...

Charles Fried, who was United States solicitor general from 1985 to 1989 and now teaches law at Harvard, said that with just a few exceptions the court had in the last 20 years corrected what he called the excesses of the Warren court, which moved the law in a liberal direction in the 1950's and 60's in decisions concerning race, religion, criminal procedure and the role of the federal courts.

"I'm perfectly happy with things as they are now," Professor Fried said. "The sky is not falling. We just have to repair a few holes in the sky. What remains to be done is to return the law to the place where Justice O'Connor — and only in the past few years — suffered a change of heart."

Justice Sandra Day O'Connor, Justice Alito's predecessor, took a relatively liberal position on affirmative action and executive power in some recent cases.

Many scholars trace the intellectual roots of the Reagan-era project from a speech that Attorney General Edwin Meese III gave to the American Bar Association in 1985, not long after he moved to the Justice Department after working for four years as one of Mr. Reagan's closest advisers in the White House. Mr. Meese criticized the Supreme Court for what he called incoherent decisions based on the policy preferences of the justices in the majority. The court's work, he said, "defies analysis by any strict standard" and reflects only an inclination "to roam at large in a veritable constitutional forest."

The solution, Mr. Meese said, was to focus on the text of the Constitution as it was understood by its framers.

"It has been and will continue to be the policy of this administration to press for a jurisprudence of original intention," Mr. Meese announced. "We will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment."

That approach has taken hold, said Steven G. Calabresi, a law professor at Northwestern University and a chairman of the Federalist Society, the conservative legal group.

"The very battleground has changed," Professor Calabresi said. "Compared to 25 years ago, the text of the Constitution is treated as much more important. The court also pays more attention to the original history surrounding the Constitution." ...