The past term of the Supreme Court was the first full term in which to determine whether President Reagan actually tipped the ideological balance of the Court with his appointment of Justice Anthony M. Kennedy. If one judges simply by the unusually loud and discordant chorus of conservative glee and liberal despair, Reagan largely succeeded in carrying out his promise to change the Court's direction.
Clearly the addition of Kennedy has made it possible for a conservative majority to come together in some very important cases. Usually in league with Chief Justice William H. Rehnquist and justices Antonin Scalia, Sandra Day O'Connor, and Byron R. White, Kennedy has contributed a discernible, if not dramatic, shift toward more conservative outcomes.
But ideological celebration on the Right and mourning on the Left are premature; there is less going on than meets the eye. The so-called conservative majority may ultimately prove to be ephemeral, for at its deepest level it is largely intellectually rootless. The conservative votes in many cases are coming together less as a matter of jurisprudential commitment to any central idea, such as federalism or judicial restraint, than as the result of an ad hoc approach to the issues presented in the particular cases. The splits in the votes, the concurrences, and the dissents--and the partial concurrences and partial dissents--all add up to a Court still more prone to personal predilection than one committed to fundamental principles. Thus, to speak of a "Reagan Court" at this time is risky, for it is not at all clear what Reagan's influence on the Court will mean in practice.
Justice Scalia, the most intellectually powerful Reagan addition to the Court, reveals why this is so. In two very important decisions--the flag-burning case and the juvenile death penalty case--Scalia demonstrated a troubling inconsistency.
Though he did write a concurrence in the flag-burning case, Scalia joined a majority in Texas v. Johnson that included William J.Brennan, Harry A. Blackmun, and Thurgood Marshall, and--surprisingly--Kennedy (who felt obliged to confess separately that joining the opinion had, for him, exacted a "personal toll"). The bottom line of the opinion was this: The states may not make burning the American flag during a peaceful political protest a criminal offense.
Such laws are prohibited on the basis of a body of judicially fabricated constitutional law wherein the Court fashioned a doctrine protecting something called "symbolic speech." That this line of legal logic runs counter to the text of the First Amendment, counter to the original understanding of that amendment, and, indeed, counter to the federalist underpinnings of the entire constitution seemed, oddly enough, not to brother Scalia very much. The result that is so very strange is that it is completely at odds with his own majority opinion in the juvenile death penalty case, Stanford v. Kentucky.
In Stanford, while granting that the Court, at least in capital punishment cases, has agreed to consider such punishments in light of the "evolving standards of decency that mark the progress of a maturing society," that does not mean, Scalia wrote, the justices' "own conceptions of decency, but … those of modern American society as a whole." Rather than merely freewheeling judicial impulses, those evolving conceptions
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