Unprecedented Attack

ASSISTANT ATTORNEY General William Bradford Reynolds has decided that the Reagan Revolution has not extended far enough into the judiciary. In a speech at the University of Missouri last month, Reynolds indicated that the Administration's covert war on liberal judges was a thing of the past. Instead, he began a direct frontal assault.

The victim of Reynolds' diatribe was none other than eminent Supreme Court liberal, Associate Justice William Brennan. Brennan's opinions, Reynolds declared, demonstrate that the Justice seeks a "radical egalitarian" society.

A good justice, according to Reynolds' standards, must allow his opinions to reflect today's political trends. Because Brennan is so often at odds with Administration positions, he is undermining the people's elected government.

But ironically, Reynolds' analysis does not quibble with Brennan's reasoning, judicial philosophy or approach to the Constitution. Reynolds' critique does not set forth a coherent theory of jurisprudence. Rather, his objections are purely political and entirely issue-based. His argument simply reduces to the claim that Brennan has taken the wrong side on too many cases.

Ideology, Reynolds thus implies, is the proper--in fact the only--standard by which justices should be evaluated. By refusing to abandon more than 20 years of consistent judicial reasoning and a rights-based approach to the Constitution in order to jump on the Reagan bandwagon, Brennan utterly fails to meet the Reynold's test of judicial competence. If Brennan is a dangerous judge because of his generally liberal opinions, then only a committed conservative can save the country and the honorable Court.

IT'S IRONIC THAT an Administration which advocates all sorts of cagy judicial theories ostensibly designed to depoliticize the judiciary--judicial restraint and the "jurisprudence of original intent" come to mind--is now favoring a blatantly political and ideological Supreme Court. It's also quite revealing.

Reynolds' rhetoric shows how profoundly the Administration misunderstands--or wishes to subvert--the nature and function of the judiciary. Reagan and team are playing games with the Constitution and mocking the court. The real goal, Reynolds has now told us virtually point blank, is not communion with the ideas of the Founding Fathers or a judiciary that defers to the other branches of government, but rather a right-wing Court.

So here lies the value of Reynold's speech. It confirms what we suspected all along--that Reagan could care less about the independence and integrity of the judiciary so long as it rules his way.

The substance of Reynold's speech is shallow and easily refuted. But the precedent which Reynolds sets is far more frightening. Supreme Court Justices are not ordinarily the subjects of personal attacks. Merely by singling out and attacking an individual Justice, Reynolds reveals his contempt for judicial independence.

And when the executive branch starts to treat the Court as just another political institution and its Justices as mere politicians, we're in for a real power grab. Don't be fooled. The Reagan-Meese-Reynolds crew is trying to weaken the judiciary and to limit the scope of judicial review not because it objects to judicial review in principle, but because judicial review stands in the way of its agenda.