Talk all you want about Iraq, the Bush Doctrine, “compassionate conservatism”, or other remnants of the Bush Presidency, but its lasting legacy is likely to be the beginning of the reversal of judicial activism led by the John Roberts Supreme Court. There are significant signs in the term just ended that the fifty-year trend in looking to the Court for redress of every social grievance will soon be reversed, however incrementally and however closely divided in numerous 5-4 decisions.
And, for those of us who would have preferred bolder sweeping reversals in some of the key decisions recently rendered, there is a lot to like about this incrementalism. For example, I would have preferred a completely stricken McCain-Feingold campaign finance law, but the significant restoration of political speech in the last days of an election campaign severely guts it. Likewise, I would have preferred much more clarity in the decision involving student free speech, including Justice Thomas’s recommendation that the traditional in loco parentis legal doctrine be restored and a reversal of the Tinker decision of 1969 that started us down the path to near anarchy in many of our schools.
Of course, the decision generating the most controversy was the ruling in multiple opinions that at long last substantially ended the use of voluntary plans to create racial balance among students in public schools. Here again, we had an incrementalism that was gratifying, but not completely fulfilling, in that, contrary to Justice Kennedy’s muddled concurrence, we should have had a complete declaration that, in the true meaning of the 14th Amendment and Dr. King’s legacy, our constitution is color blind.
But I won’t let the perfect be the enemy of the very good, for the real message from this term is that Presidential elections have consequences that are truly transformational, and Bush’s appointments of Roberts and Alito may indeed begin to direct us away from much of the judicial tyranny of the past several decades and take us back to, as Roberts himself put it, “a modest approach to judging, which is good for the legal system as a whole”.