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Posted by on Apr 1, 2012 in At TMV, Law, Politics | 11 comments

Sign of Changing Conservatism: Reagan Administration Lawyers Concerned About Supreme Court Activism

Here’s yet another tidbit that illustrates that today’s Republican Party is not the Republican Party of your Grandfather — or even your father: Reagan administration lawyers are reportedly concerned about activism from today’s mostly conservative Supreme Court:

When the incoming Chief Justice John G. Roberts Jr. came before the Senate for confirmation seven years ago, President Reagan’s solicitor general gave him a warm endorsement as a “careful, modest” judge.

“He’s not a man on a mission,” Harvard Law professor Charles Fried testified, adding that Roberts was not likely “to embark on constitutional adventures.”

But two years ago, the Roberts-led Supreme Court struck down the federal and state laws that for a century had barred corporations and unions from pouring money into election campaigns.

And last week, the court’s conservatives, including Roberts, suggested they may well strike down President Obama’s healthcare law as unconstitutional. If so, it would be the first time since 1936 that the Supreme Court voided a major federal regulatory law.

After the healthcare arguments, Fried was among those who worried aloud about the prospect of the Roberts court embarking on a new era of judicial activism.

If the court were to invalidate the healthcare law, “It would be more problematic than Bush v. Gore,” Fried said in an interview, referring to the case that decided the 2000 presidential race. “It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before.”

His comments highlight a growing divide between an earlier generation of judicial conservatives who stressed a small role for the courts in deciding national controversies and many of today’s conservative justices who are more inclined to rein in the government.


Fried had confidently predicted the law would be easily upheld. He said he was taken aback by the tone of the arguments. “The vehemence they displayed was totally inappropriate. They seemed to adopt the tea party slogans,” he said.

Pepperdine law professor Douglas W. Kmiec, another top Justice Department lawyer under Reagan, said he hoped the justices would “come to their senses” and uphold the law as a reasonable regulation of interstate commerce.

Among younger conservatives, Fried and Kmiec have their detractors because they endorsed Obama during the 2008 campaign. But they are not alone among Reagan-era lawyers who continue to emphasize judicial restraint.

In November, Judge Laurence H. Silberman, a Reagan appointee to the U.S. Court of Appeals in Washington and long a leader of the conservative legal movement, wrote an opinion upholding the healthcare law on the grounds that Congress has the power “to forge national solutions to national problems.”

The Reagan-era lawyers sought to rein in what they saw as liberal judicial activism. For example, Fried and Kmiec thought the Roe vs. Wade ruling that struck down the state abortion laws was a mistake and should be overturned. However, they thought the high court should stand back and defer to Congress on matters of business and economic regulation.


Despite the oral arguments, many legal experts on the left and right say they doubt the high court will strike down the healthcare law by a 5-4 vote.

Fried said he is no longer sure. “The odds of [striking it down] have gone way up,” he said.

Fried testified at Justice Samuel A. Alito Jr.’s confirmation hearing as well as the one for Roberts. “My judgment was that they were committed to the rule of law and to precedent,” he said, pausing. “I hope that turns out to be true.”

The reaction of these former Reagan administration lawyers undescore the emergence now of a thought that hadn’t been taken seriously just a few months before: the suggestion by some that if the GOP makes a clean sweep in the 2012 elections (which a recent analysis by a Larry Sabato associate suggests could well happen) it could usher in not just the dismantling of the New Deal but perhaps even reforms put in place by Republican reformer President Theodore Roosevelt. The late 20th century definition of “conservative” no longer applies.

When Reagan administration lawyers are dismayed, what more can you say?

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