The Reagan Revolution and the Supreme Court

Order and Law: Arguing the Reagan Revolution
A Firsthand Account

by Charles Fried
Simon and Schuster, 256 pp., $19.95
Charles Fried
Charles Fried; drawing by David Levine


The right-wing lawyers Reagan appointed to the Department of Justice early in his presidency promised a “Reagan revolution” in constitutional law. They tried to pack federal courts at all levels with judges who survived the most stringent political tests for judicial appointment ever used in this country; and they asked these judges to make decisions that would overturn decades of constitutional precedent and leave the Constitution no longer an important source of minority or individual rights against unjustified public authority.

The revolution is beginning to bear fruit. In its recent decisions the Supreme Court (which now seems safely in the hands of justices whom conservatives regard as politically correct) has repealed or undercut traditional constitutional rights in major respects. It has adopted new rules that sharply limit the number of times people sentenced to death can ask federal courts to look at fresh evidence or new arguments.1 It has decided that it may be merely “harmless error” for police to beat a confession out of a criminal defendant.2 It has rejected the use of plainly pertinent statistics in deciding whether race has played any role in a decision to execute a black defendant.3 It has granted states the power to restrict abortions in ways particularly harmful to poor women, and, most recently, in Rust v. Sullivan, it has approved as constitutional an executive order forbidding doctors in any clinic financed with federal funds to discuss or offer information about abortion, or to indicate where such information might be available, even for women who specifically ask to discuss abortion and have no other access to medical advice.4

The last of these decisions seems particularly appalling to constitutional scholars. For the first time the Court has upheld the power of government to impose restrictions not only on what people who accept government money might do with that money, which are often reasonable, but on what they may say in the performance of their professional duties, which strikes close to the nerve of free speech, particularly in a society like ours in which medicine, research, and education are so densely intertwined with governmental funding.

The Court did this, moreover, in a particularly crude way: it upheld a Reagan bureaucrat’s reinterpretation of a congressional statute that had always been understood not to carry that implication, in spite of the fact that, as Justice O’Connor pointed out in a stinging dissent, the Court traditionally avoids interpreting congressional acts in a way that would raise difficult constitutional issues unless Congress insists that it means to raise them. Congress can—and may very well—enact another statute declaring that the administration’s interpretation is wrong. But Bush can veto that statute, and a minority of legislators, who are “pro-life,” can sustain his veto.

Not just this decision, but each of those I have mentioned, is revolutionary: in each the Court has ignored decades of precedent, and each…

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