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Reagan and the Courts:
A Sober Assessment


Wednesday, Jun. 09, 2004

Judging by the recent public statements of politicians and pundits across the political spectrum, Ronald Reagan was a universally beloved President whose policies were approved by the American people with nary a dissenting voice, and who brought peace and prosperity to the world.

Yet Reagan was elected in 1980 with less than fifty-one percent of the popular vote, and though he won a decisive re-election victory in 1984, his campaign theme of "It's morning in America" seemed designed to highlight the sunny optimism of his personality rather than the ballooning federal deficit.

Likewise with respect to foreign policy, the frequent replaying of Reagan's memorable plea to Mikhail Gorbachev that he "tear down this wall" over the last several days may give the impression that Reagan's approach towards the "Evil Empire" was the proximate cause of the collapse of the Soviet Union. In fact, many historians believe that communism unraveled largely from within.

Moreover, if we do credit Reagan's foreign policy with hastening communism's demise, we must surely also hold it accountable for creating some of the dangers we now face--for many of today's Al Qaeda terrorists are the direct descendants of the mujahidin fighters that the United States under Reagan trained and backed in its proxy war with Soviet forces in Afghanistan.

Of course, it is impolite to speak ill of the dead. Like many other Americans who disagreed with Reagan's policies as President, I join his supporters in mourning his passing. But insofar as understanding Reagan's legacy bears directly on challenges that still lay ahead, the haze of nostalgia should not be permitted to obscure a clear-headed assessment of the record. We can celebrate Reagan the man without approving of everything Reagan the politician attempted or accomplished.

Like every President, Reagan affected the nation in many ways, great and small. Sticking to my own area of expertise, I'll focus below on his impact on the law.

Because federal judges, including Supreme Court justices, serve life terms, a President can exert the greatest long-term impact on the law through judicial appointments. After canvassing Reagan's appointees, I conclude that, sadly, the most profound impact of the judges Reagan appointed was to reduce the role played in the law by the compassion for individuals that so many people admired in Reagan himself.

Reagan's Supreme Court Appointments

Four of the nine current Supreme Court Justices were appointed by President Reagan: Sandra Day O'Connor, the first woman to serve on the Court, appointed in 1981; William H. Rehnquist, whom Reagan elevated to Chief Justice from the position of Associate Justice in 1986; Antonin Scalia, named by Reagan to fill the seat vacated by Rehnquist; and Anthony M. Kennedy, appointed to the Court in 1987 (after the Senate rejected Reagan's first choice, Judge Robert Bork, and Reagan's second choice, Judge Douglas Ginsburg, withdrew from consideration after admitting to prior marijuana use).

Together with former President George H.W. Bush's appointee Justice Clarence Thomas, Reagan's four Supreme Court appointees comprise the "conservative" wing of the current Supreme Court. Especially on issues of federal-state relations, they have moved the law considerably from where it stood prior to Reagan's election.

But Reagan's appointees do not invariably vote as a bloc. For example, Kennedy is a free speech liberal. Both Kennedy and O'Connor have voted to uphold gay rights and what they called "the central holding of Roe v. Wade," thus terribly disappointing Reagan's anti-abortion/pro-life supporters. In addition, even on issues of federalism, one or more of the Reagan Justices sometimes defects--as Justice O'Connor did just last month in joining the Court's more liberal Justices to uphold the public access provisions of the Americans With Disabilities Act in Tennessee v. Lane.

If one is keeping score strictly on the political spectrum, Reagan's Supreme Court appointments appear to be evenly divided between moderate conservatives O'Connor and Kennedy, on the one hand, and deep conservatives Rehnquist and Scalia, on the other.

But the scorecard is actually more moderate, because Reagan did not name Rehnquist to the high court. He simply moved Rehnquist into the Chief's seat, where he has quite successfully carried out largely non-political and mostly administrative tasks along with his judicial duties as first among equals.

So the real score for Reagan, when it comes to the Supreme Court, is two moderate conservatives and one deep conservative.

The Lower Federal Courts: A More Clearly One-Sided Impact

Because the Supreme Court hears very few cases, most of the decisional federal law in the United States is generated by the lower courts. Reagan's impact on the lower federal courts was more clearly one-sided than his impact on the Supreme Court.

To be sure, President Reagan made a number of truly stellar appointments to the lower federal courts--powerful intellects like Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, and Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. While every judge who honors his or her oath of office attempts to follow the law as he or she best understands it, these judges--and some others--distinguish themselves from their colleagues by ruling in no ideologically predictable pattern. Instead, they write persuasive and interesting opinions reaching an array of liberal, moderate, and conservative results.

The run of judges appointed by President Reagan, however, have followed a distressing pattern. To paint with broad strokes, where possible, they take a stingy view of the rights the law affords people.

A former law clerk to a prominent Reagan appointee to the federal appellate court once told me that his erstwhile boss said he liked to dismiss at least one case per week on jurisdictional grounds. The former clerk was not joking, and the judge's remark was consistent with his and many of his colleagues' rulings.

One might explain some of what I am calling stinginess as compassion directed elsewhere. Many petitioners in the federal courts are people who have been convicted of crimes; by denying their rights, Reagan judges may claim they are protecting the rights of crime victims.

Fair enough, but Reagan's appointees have fashioned legal doctrine and issued particular rulings that deny the rights of minorities facing race discrimination, asylum seekers, workers, the disabled, and other innocents whose losses do not translate into victories for anyone but the government.

Reagan Versus Reagan's Judges: Compassion in the Man, But Not His Appointees

Perhaps the best way to evaluate Reagan's legal legacy is by juxtaposing his own compassion with the philosophy of his appointees.

In his efforts to shrink the size of the government, President Reagan cut federal programs on which many people relied. Some of these people contacted Reagan and explained the hardships that resulted. It was reported that Reagan would sometimes try to help the individuals about whose cases he learned--but that he would not revise the general policy that led to the particular hardship and to the many more hardships about which he did not have firsthand knowledge.

These stories (if true) reveal both a strength and a weakness in Reagan's character. Surely one must admire the man's compassion in wanting to help people. At the same time, however, one must wonder how the leader of the free world could fail to apprehend that the particular problem complained of was the direct result of the general policy he supported. Was he naÏve, or disingenuous?

For better or worse, or both, Reagan's judges have not exhibited the same ambivalence about the effects of their decisions as their sponsor did. American courts make law by announcing general rules in the process of deciding concrete cases. Consequently, it is nearly impossible for a court to lay down a generally harsh rule, while at the same time exempting the particular subject of the rule from its harsh effect--as it seems Reagan at times personally did. If the rule does not apply to the parties before the court, the court has no business laying it down.

Courts could, of course, respond to the seeming inequity of a proposed judicially crafted rule by adopting a different, more humane, rule. But that has not generally been the approach of the Reagan judges.

The Reagan judges may be understood in contrast with those that came before them--including other Republicans. Consider the late Justice Harry A. Blackmun, appointed to the U.S. Court of Appeals for the Eighth Circuit by President Eisenhower and to the U.S. Supreme Court by President Nixon. Blackmun famously dissented from a 1989 case, DeShaney v. Winnebago County Social Services Dep't, in which a majority that included all of the Reagan appointees ruled that a state child welfare agency could not be held constitutionally accountable for recklessly failing to prevent the gross abuse of an infant. Writing for himself, Eisenhower appointee William Brennan, and Johnson appointee Thurgood Marshall, Blackmun averred that "compassion need not be exiled from the province of judging."

Blackmun's point was not that judges should circumvent the law to reach results that favor sympathetic plaintiffs. Rather, he believed that in the sorts of cases that tend to reach the Supreme Court, the law contains ambiguities that ought to be resolved, where possible, in ways that take account of the real stakes for the people whose lives the law touches. Too often, Reagan's appointees have seemed to embrace the opposite view.

Michael C. Dorf is Professor of Law at Columbia University. His new book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

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