Adam Liptak has an article in today's New York Times on the consolidation of conservative gains on the Supreme Court.
Conservative lawyers in the administration of President Ronald Reagan had an ambitious agenda. They wanted the courts to pay closer attention to the Constitution's text, to fashion a more limited role for the federal government, to allow religion to have a larger presence in public life, to use skepticism in reviewing race-based classifications in the law and to stop the expansion of protections for criminal defendants.
Many of those ideas, considered bold, and even extreme, at the time, have entered the legal mainstream and now routinely serve as the basis for decisions of the Supreme Court. That means that the Supreme Court's two newest members, both alumni of the Justice Department in the Reagan years, will, if they follow the agenda they helped create back then, largely be consolidating a victory rather than breaking new ground.
Conservatives have high hopes for Justice Samuel A. Alito Jr., who was confirmed on Tuesday, and for Chief Justice John G. Roberts Jr., who joined the court in September. But their to-do list has shrunk.
Some large items, notably abortion, remain, though some conservative lawyers have reconciled themselves to trying to limit rather than overturn Roe v. Wade, the 1973 decision that found a constitutional right to abortion.
My colleague, Steve Calabresi, yesterday was discussing with me the changes since 1982 (when the Federalist Society was founded). He noted that the Court's 4 liberals as a group today are less liberal than the 4 liberals in 1982, who included Brennan, Marshall, and Blackmun. And the 4 conservatives today are stronger as a group than the conservatives in 1982 (even though O'Connor in 1982 had yet to move to the center). But the swing vote in 1982 was Justice Powell, and Calabresi's contention is that Powell was more conservative than the swing vote today, Justice Kennedy.