Reagan Destroyed the Supreme Court

With the announcement of the retirement of Supreme Court Justice John Paul Stevens, a lot of discussion is going on as to possible successors. This discussion demonstrates a point anyone who practices law has long known, Ronald Reagan destroyed the Supreme Court.

Justice Stevens is a lot of things. A Republican appointee (Ford), a moderate who found himself on the liberal edge as the court veered sharply to the corporate right, but above all, he was (and is) exceptionally bright and keenly insightful. As Adam Litpak said today in the New York Times, he was "the last justice from a time when ability and independence, rather than perceived ideology, were viewed as the crucial qualifications for a seat on the court."

In selecting Stevens, President Ford said all he wanted was "the finest legal mind I could find." Stevens lived up to that quest.

Then came the "Reagan Revolution" and its war on the intellect. Reagan sought not the best mind, but the mind most likely to abdicate responsibility to corporate interests. He got precisely what he wished for in Scalia and Kennedy. Bush, Sr. continued the drive to replace intellect with ideology through his choice of Thomas (Souter's ultimate direction was not what Bush had expected).

As Jonathan Alter recently attested, for all his fireworks, Scalia cannot hold a candle to Steven's intellect. The proof is in the consistency of argument. Stevens' decisions demonstrate a consistent approach to the law that has little to do with the political identity of the parties involved. Scalia is the opposite - always finding a way, no matter how intellectually dishonest, to rule in favor of conservative parties, even if this requires contradicting his own prior work.

While the republicans drove through ideological purists, Clinton waffled, and appointed middle-of-the-roaders who wouldn't ruffle any feathers. Those who claim Breyer or Ginsburg are "liberal" don't know the meaning of the term.

Bush Jr. upped the ante further, appointing Roberts and Alito, both of whom even Scalia has described as intellectually dishonest. Ouch!

There was a time when the high court was peopled by towering intellects. From Oliver Wendell Holmes, Louis Brandeis and Benjamin Cardozo through Felix Frankfurter, William O. Douglas, William Brennan, Thurgood Marshall, Earl Warren, Robert Jackson, Hugo Black, Harry Blackmun, and, the last holdout, John Paul Stevens.

Now, some thirty years after the conservative movement decided to punish the sin of intelligence, we have the likes of Thomas, Alito and Roberts.

It is not even clear that President Obama could succeed in naming an intellectual giant to the Court. I hope he tries anyway.