The New Judicial Conservatism

The momentum generated by conservatives between 1984 and 1987 reached a new high point with President Reagan's nomination of Judge Robert Bork to fill the vacancy created by Justice Lewis Powell's retirement. Judge Bork was correctly seen as the leading intellectual spokesman for the new legal conservatism. Hence, when the Senate rejected the Bork nomination, battered liberalism seemed triumphant in decelerating the new legal conservative agenda.⁵³ The Bork defeat may be the greatest liberal constitutional victory between Ronald Reagan's assumption of office and the election of the next progressive Democratic President. Still, one must be cautious not to attribute undue significance to this victory. While the former Attorney General and the New Right never succeeded in fully convincing the Court and the nation of the merits of their constitutional campaign, they did manage, nevertheless, to change the judicial climate by more than a few doctrinal degrees. Just as Meese's conservative concept of 'original intent' was dismissed as too extreme, the liberal style of 'judicial activism' also came to be seen in a new and more critical light. However history judges the Reagan Justice Department's constitutional polemics, they may well have been instrumental in creating an atmosphere in the legal community in which federal appellate judges, particularly Reagan appointees, move with more reserve in vindicating rights claims, even legitimate ones.⁵⁴

One of the more apparent signs of the constitutional spectrum's move to the philosophical right was the Senate's characterization of Judge Anthony Kennedy during his confirmation proceedings. Judge Kennedy, 'one of the most conservative judges on the Ninth Circuit,' came to be seen as 'an honorary liberal'⁵⁵ by the Senate which unanimously approved him. Thus, the Bork rejection did not portend any new wave of enthusiasm for activist judicial liberalism. In an era in which Anthony Kennedy is viewed as a liberal, liberalism is reduced to respecting only certain core constitutional rights norms. If Justice Kennedy is considered to be "in the mainstream,' similar to Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Sandra Day O'Connor,' ⁵⁶ extended applications of rights that come to be seen as logically compelled are not likely to be embraced. And, so far as federal judicial review is concerned, constitutional liberalism will find itself in a holding pattern, largely unable to shape the law in any significant way.

In response to these developments, there is a danger that liberal public law scholars will return to reactive scholarship, similar in principle, though far greater in degree, to the scholarship produced in the early years (1969-1975) of the Burger Court era.⁵⁷ Should a more conservative federal judiciary be receptive largely to conservative scholarship, liberal scholars must not limit themselves to reactive scholarship. Rather, they must evolve a reconstructive view, which introduces a future agenda both within and outside of the courts.