Changing U.S. court

Press, 10 July 1987, Page 16

Changing U.S. court

From the “Economist,” London

President Reagan will leave office in less than two years. Judge Robert Bork, whom he nominated to the Supreme Court to take the place of Justice Lewis Powell, could be shaping Americans’ lives into the next century. The prospect of Mr Reagan thus influencing the future explains why, ever since he came to office in 1981, his more ideologically committed supporters have been ghoulishly pointing to the poor health and advanced years of several members of the court. Yet point is all they have been able to do. For, even though Mr Powell’s retirement is the third during' Mr Reagan’s term in the White House, the court’s political complexion has not greatly altered. To America’s conservatives, it has still seemed too liberal. If Mr Bork is confirmed by the Senate, that may now change. Conservatives are especially elated because they now see the prospect of perpetuating the social aspects of Reaganism. By his Budget deficits and tax reform, Mr Reagan has changed the domestic legislative landscape: old-fashioned Federal spending is simply not an option in the foreseeable future.

By his defence build-up, Mr Reagan has changed the foreignpolicy landscape: he may not get all he wants on “star wars,” but not even intervention-shy Democrats will soon dissipate the military strength that has helped to bring the Russians to the negotiating table. Yet in one respect the true believers have been disappointed. They have not seen the social change they wanted: no big rolling-back of the preferment programmes for blacks and other minorities and women; no new opportunities for prayer in schools; no sweeping bans on abortion. Congress would not oblige and nor would the Supreme Court. Mr Bork is certainly better disposed to the conservatives’ views on most of these issues than Mr Powell was. Yet the court is unlikely to become overnight an engine of reaction. That does not mean it will not be political. Its task is to defend individual rights, to strike down laws that are unconstitutional, to arbitrate between the states and the Federal Government and between the different branches of the Federal Government. To argue

that this task is somehow not political is naive. Laws and rights, even natural rights, are political in America, as elsewhere. The Supreme Court has always exercised political power and will continue to do so.

The question is whether it will be intelligently political or foolishly so. In its attitudes to social questions over the past few years, the court may well have been more in tune with Americans than the right wing of the Republican party has been. It now looks as though it will become more conservative, for a while at least.

But political labels are unsatisfactory enough when applied to those who practise party politics; applied to judges they can be doubly misleading. A Supreme Court justice with an astute political sense, certainly one with a legal mind as distinguished as Mr Bork’s, is unlikely to promote the ideology of zealots. More probably, the centre of political gravity of the nine Supreme Court justices will continue to shift unpredictably on one issue after another — and to surprise those who try to secondguess its course. Copyright — The Economist