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September|October 2004

The Great Divider

By Lincoln Caplan

AS THE COUNTRY TURNS ITS ATTENTION to the upcoming elections, America is as polarized as it has been in generations. Among the most polarizing subjects is the law. Have our civil liberties been needlessly weakened in the effort to strengthen our national security since September 11? Should Congress pass a constitutional amendment to forbid gay unions, or should the states be left to decide the issue for themselves? The presidential election will determine not only the composition of the federal judiciary, in particular the Supreme Court, but will also answer to important questions like these. The politicization of the judiciary might seem old news, but it's relatively recent: The phenomenon is among the major legacies of Ronald Reagan's presidency.

In every decade of this country's history, a fundamental legal choice has helped divide left from right. The Nixon Administration used its support for affirmative action and for law and order to divide blacks and union members who had formed the heart of the Democratic Party. But the Reagan Administration went much further. It differentiated itself by employing its legal views as an all-purpose wedge, to rouse its conservative base and drive Americans apart. It turned the red, white, and blue of the rule of law into what has since become known as Red (Republican) and Blue (Democratic) America.

Led by Edwin Meese, who started as a White House adviser and became the attorney general, the Reagan team concentrated on the federal courts as the place to pursue its social agenda. The goal was to end abortion, affirmative action, and school busing as a remedy for desegregation, and to allow prayer in public schools. According to the political scientist Sheldon Goldman, the Administration used ideology as a litmus test for picking judges more than any other administration in American history had, and it made a politician's likely judicial selections a touchstone for his candidacy.

In addition, it pursued its agenda in high-profile cases before the Supreme Court, most dramatically through the solicitor general's office. The office dealt with the agenda's core as well as with other subjects favored by the Administration, like tax exemptions for racially discriminatory universities. The aggressiveness of the Reagan approach was made clear by its first solicitor general, Rex Lee, a respected conservative hounded from office for not being aggressive enough. "I'm the solicitor general," he said, "not the pamphleteer general."

The unprecedented approach to judicial selection and to Supreme Court advocacy was grounded in a big idea, an unconservative form of legal conservatism. Since the historic 1803 case of Marbury v. Madison, it had been widely accepted that the court had the final word in saying "what the law is." But the need for the court to serve this purpose seemed at odds with the democratic nature of American government, so the practice of judicial restraint was developed to ease the tension. Leading judges turned restraint into a basis for legal conservatism and for the gradual evolution of the law. The Reagan view differed radically. Old-style restraint would have meant extending the power of a judiciary—in favor of abortion or against school prayer—that was opposed by the Administration. New-style restraint meant reducing the power of the federal courts in relation to other government branches, including, in theory, by overturning Marbury.

The left followed the Reagan team's lead in politicizing the law. In 1987, the fight over the Supreme Court nomination of Judge Robert Bork was a watershed. Civil rights groups mounted a fierce campaign against Bork, for the first time making a nominee's ideology a factor in the confirmation process. While he was roundly rejected, 58 to 42, the concept of "Borking"—partisan, unfair criticism of a nominee—outlasted the confirmation process for a reason. The left impugned his decency and went after him immoderately.

And the era's legal free-for-all wasn't solely a result of the clash between the Administration and its opposition. Legal scholarship was so divided that court rulings began to be scrutinized for the purity of their ideological content rather than the persuasiveness of their reasoning. There was more disagreement than consensus about the meaning of the Constitution.

But that was a prime Reagan goal. The attorney general's office sent senior Justice Department officials a memo urging them to "polarize the debate." It stated, "We must not seek 'consensus,' we must confront." The purpose was to offer a dramatic choice about the role of law in our society. From its successes, Ronald Reagan's team was emboldened to reform the legal order, and it helped move the country notably to the right. Lost in the retrospectives after Reagan's death was this legacy: He contributed to the political schism that now defines the country.

Lincoln Caplan is the editor and president of Legal Affairs and author of The Tenth Justice: The Solicitor General and the Rule of Law.

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