WHERE IS FDR WHEN HE'S NEEDED; STRICT CONSTRUCTION REQUIRES RESTRAINT

At the time of the nomination of Judge Robert Bork to the Supreme Court, we were told that all this country needed was a dose of "judicial restraint." The Neanderthal "original understanding" or "strict construction" crowd said that stare decisis should reign. Jesse Helms and company claimed that judges should ascertain the literal meaning of the words of the Constitution and write their opinions as narrowly as possible.

Helms and Bork wanted the words in the Constitution "to mean exactly what they meant in 1787," despite the obvious impossibility of making such interpretations over two centuries later, and despite the intervention of changing times and circumstances.

The "original intent" theory supposedly would prevent "judicial legislation." In spite of the rhetoric, the opposite has happened. It was a foregone conclusion that Chief Justice William Rehnquist, as soon as he got five sure votes on the court, would undo as much of the judicial past as he could get away with. Once William Brennan retired and David Souter replaced him, it was bombs away like the air raids on Iraq during Desert Storm.

It began in 1988 and 1989, when Rehnquist and his cohorts obliterated the scope of recognized civil rights precedents and statutes.

Now comes the recent Rust v. Sullivan case where Rehnquist and four others upheld the parting-shot, 1988 Reagan Administration rules prohibiting health clinic employees from even mentioning the word "abortion." The Rehnquist Five catapulted beyond the bounds of judicial restraint to save the regulations. On Thursday, the new majority rewrote the standing opinion on automobile searches and seizures.

Rehnquist preaches judicial restraint, but with five sure votes, obviously is not going to practice it. For example, a year ago the Chief Justice lobbied Congress to change the federal habeas corpus statute that permits prisoners to challenge their convictions. Congress wouldn't budge. So last month the Rehnquist Five (plus one) decided to asend the statute by judicial fiat in the case of McClasky v. Zant. No more waiting around for Congress to act: we'll do it from the bench. Coerced confessions used to be a clear no-no. According to another recent ruling from the Rehnquist Five, they may now be just "harmless error."

That Rehnquist is now off on his own ideological frolic comes as no surprise. Did anyone really believe that the Rehnquist Five would sit around and rubber stamp everything written by William Douglas, Hugo Black, Earl Warren and William Brennan?

"Judicial restraint" is the phoniest jurisprudential phrase of modern times. Even prissy Felix Frankfurter, perhaps the greatest restrainer of his time, unrestrained himself to strike down the long-established but rancid separate-but-equal doctrine. Today, the conservatives preach "judicial restraint" until they get five out of nine votes and then all restraints disappear. Twelve years of Franklin Roosevelt plus the Eisenhower "mistakes" of Warren and Brennan gave the country a rock-ribbed activist liberal court. Twelve (or more) years of Reagan and Bush will give us a rock-ribbed activist conservative bench.

That's the way the Supreme Court goes. It's back to Hughes, Butler, Van Devanter, Sutherland and McReynolds with no help in sight. FDR, where are you when we need you?