Conservatives and the Supreme Court

WASHINGTON

IN MODERN TIMES, conservative philosophies have proved skillful at winning elections but intriguingly deficient at governing a huge and diverse nation -- as Richard Nixon, Ronald Reagan and two Bushes have shown from the White House and William Rehnquist showed for nearly two decades as Chief Justice.

The question -- now that President Bush has an opportunity that no president has had since Richard Nixon broke true-blue conservative hearts some 34 years ago -- is whether there is a conservative doctrine that can guide the Supreme Court and bring the country along politically in its wake. If there is, the stakes for Rehnquist's successor, and Justice Sandra Day O'Connor's as well -- not to mention the country -- are huge.

But I wonder.

Conservative philosophy concerning the Constitution was an enormous part of the package of ideas that helped Richard Nixon win the White House in 1968. At a time of domestic turmoil, and after a long period of dramatic and controversial expansions of civil rights and federal power, Nixon offered order.

The slogans about the Supreme Court that dominated his rhetoric then are still around us today -- strengthening the forces of law and order, strictly interpreting the Constitution, avoiding the temptation to simply achieve policy results and ''legislate" from the bench, and deferring to legislatures instead of ''activist" federal judges.

But something happened on the way to the revolution conservatives hoped for. Nixon named a consolidator, Minnesota's Warren Burger, to replace Earl Warren as chief justice. And after defeats over his nominations of very different Southern conservatives (Clement Haynsworth and G. Harrold Carswell), he nominated two more non-activists, Lewis Powell and Harry Blackmun -- anticipating Ronald Reagan's choice of O'Connor and Bush I's choice of David Souter.

In the years that followed, a movement that arose in opposition to the Warren Court ended up consolidating its major achievements -- outlawing segregation, establishing basic rights for criminal defendants, ending unequal representation by deciding that ''one man, one vote" was the proper principle, and ruling that there was a right to privacy clearly discernible between the Constitution's lines (the eventual foundation of abortion rights). The analogy this suggests is that after the New Deal, Fair Deal, New Frontier, and Great Society, the country has been unwilling to part with Social Security, federal aid to local schools, Medicare and Medicaid, to name just a few programs, even under conservative administrations.

The one judicial appointment exception in Nixon's time was Rehnquist. It is a sign of his lengthy but confusing tenure that scholars will be debating Rehnquist's legacy for decades.

Conservatives loved Associate Justice Rehnquist, a principled dissenter from almost the moment of his arrival (the original Roe v. Wade) on into the early 1980s (his lone dissent from the 1983 decision permitting the outlawing of tax deductions for the financing of schools that discriminate against minorities). They have had more trouble loving Chief Justice Rehnquist, though here the problem has been his inability to lead a court majority through a consistent view of the balance between individual rights and government powers and between the power of state and local government and that of Uncle Sam. Rehnquist hasn't changed much over the years, but his leadership of an conservative majority was uncertain.

The conservatives of today sense another opportunity to lead a revolution, though in John Roberts it is not yet clear whether Rehnquist's long-ago clerk is as committed to change today as he was 20 years ago. That is why the pressure to release details of his work under Kenneth Starr and Bush I in the solicitor general's office will increase greatly now that the stakes are higher. But that is also why the identity of Bush II's other nominee may need to be known before the scope of the president's intent is clear.

Thanks to Rehnquist's uncertain trumpet, the would-be revolutionaries have done a poor job explaining what they hope to accomplish. Conservatism has abandoned balanced budgets, embraced big government at home and violent nation-building abroad, and will soon be forced to stop trying to privatize Social Security.

The federal judiciary is now available for longer-term domination by people with pinched notions of individual rights and national responsibility. But the supreme irony is that the moment arrived after a week that reminds us why a strong, healthy, national government is essential.

Thomas Oliphant's e-mail address is oliphant@globe.com.