SETTING THE SCENARIO

How will liberal legal scholars respond to the new realities of the next decade and the twenty-first century?

This question arises against a menacing backdrop. Conservatives have won the lion's share of presidential contests since 1970. There has not been a Democratic appointment to the Supreme Court in over two decades. The egalitarian revolution of the Warren Court is slowly winding down. Moreover, since 1980, the Department of Justice, the Legal Services Corporation,⁴ the Civil Rights Commission,⁵ federal regulatory agencies,⁶ and even the Commission on the Bicentennial of the U.S. Constitution⁷ have distanced themselves from the post-war liberal agenda.

Meanwhile, Ronald Reagan has created an enduring institutional legacy.⁸ In fewer than eight years, he has reshaped the federal bench, both in numbers and in judicial philosophy. Reagan has named more judges of lower federal courts--some 398 in all ⁹--than Franklin D. Roosevelt did in 12 years with 203 judges. More than 48% of the sitting federal judges are Reagan appointees.¹⁰ Reagan judges command a majority in all but four of the twelve federal courts of appeals.¹¹ They predominate in the influential Courts of Appeals for the District of Columbia and Second Circuits. In all of these appointments, the Reagan Justice Department, with former Attorney General Edwin Meese at the helm, has played a dominant role, ensuring the selection of candidates who conform to the administration's political and ideological preferences.¹²

The winds of change can already by detected in recent decisions¹³ in discrete areas of constitutional law, such as criminal justice, taking, religious establishment, affirmative action in employment discrimination, privacy, and justiciability doctrines.¹⁴ Specifically, Reagan appointees are only half as likely as appellate judges appointed by Democratic presidents to rule in favor of civil rights plaintiffs, criminal defendants and public interest groups.¹⁵ And, according to two new studies by political scientists C. K. Rowland and Robert Carp, Reagan appointees are already changing the direction of federal law. For example, data obtained from a 1981 to 1985 study of federal district court decisions reveal the following contrast:

           Affirming Claims of Race Bias    Affirming Claims of Handicap Bias
                   -------------------------  ---------------------------------
Carter Appointees             59%                            61%
Reagan Appointees           13%                            25%. ¹⁶

In the area of criminal justice cases decided by federal district courts between 1981 and 1984, a Rowland, Carp, and Songer study produced these findings:

Affirming Criminal Justice Rights Claims
----------------------------------------
Nixon Appointees                     32%
Carter Appointees                     47%
Reagan Appointees                   24%. ¹⁷

 Furthermore, the Reagan judiciary apparently discovered a powerful tool in the en banc review process, which it has employed with increasing frequency to steer federal courts in a more conservative direction. In the last four years, the number of en banc appellate decisions increased 33%, in contrast to a 5% growth from 1976 through 1983. ¹⁸ Predictably, liberal rulings by three- judge panels were often reversed.