Taking a hard right.

• Author: Waldman, Amy
• Position: How lower courts have become more conservative

They were no longer called "black" and white," but well into the seventies Mississippi's universities were still separate and unequal. With creative admissions standards and disingenuous funding criteria, the state had perpetuated a system of higher education that segregated in practice if not in name. Historically black universities remained black and meagerly resourced, while their white counterparts grew fat with libraries and land grants. When a group of black Mississippians finally brought suit claiming as much, their case seemed irrefutable.

Irrefutable, but also irrelevant--at least according to the Fifth U.S. Circuit Court of Appeals, which heard the case in 1990. The court conceded some segregation and inequity in the system, but ruled that because Mississippi no longer officially discriminated, the state couldn't be forced to change course. So egregious was the unequal treatment, however, that the Rehnquist Supreme Court--hardly a bastion of liberalism--overruled the Fifth Circuit in an eight-to-one decision calling the state's higher education system "constitutionally suspect."

The lower court's decision was reversed, but its poignancy was undiminished, for the Fifth Circuit had once been at the vanguard of racial justice. It played a pivotal role in expanding civil rights in its jurisdiction, the heart of the Old South, by enforcing desegregation in the wake of Brown v. Board of Education. In the face of uncloaked public hostility, the court's judges exhibited extraordinary courage and became the stuff of judicial legend--powerful symbols of federal courts' ability to ensure that right prevailed for those without political might on their side.

The Fifth's move from the principled left to the extreme right, from deliberately expansive to determinedly narrow readings of the Constitution, has been dramatic--but hardly unique. Similar, if subtler, shifts have taken place across most of America's lower courts, where the seeds of the conservative judicial revolution have come to fruition. "It's been remarkable," says Richard Epstein, one of the country's leading conservative legal academics, of the lower courts. "There has been a fundamental change in the law."

Yet while the rightward shift of the Supreme Court has provoked endless liberal handwringing, the greater transformation below has garnered little attention. "The lower courts just carry out the decisions of the Supreme Court," explains Senator Paul Simon, a longtime member of the Judiciary Committee. "I voted against Clarence Thomas to be the head of the [Equal Employment Opportunity Commission]. When I heard he might be considered for the Supreme Court, I said I would vote against him for that. But I voted for him for the Court of Appeals."

Such ignorance of the importance of federal appellate courts is astounding. For most Americans, the 12 appeals courts are, literally, the courts of last resort--only 94 of the thousands of cases decided there were heard by the Supreme Court during the last term. Appeals court judges set precedents and case law for their regions--which means most of the laws affecting us. Creative or persuasive argumentation by appellate court judges is often adopted by the Supreme Court as well. Whether sanctioning discrimination or curbing environmental regulations, decisions by both appeals and district court judges have real, ongoing consequences.

That the lower courts are crucial is something that, like Simon, President Clinton often seems to underappreciate. The "activist president" has been been erratic in filling seats and cautious in his choices-particularly in comparison to the Republicans who preceded him. And now that Republicans control the Senate and Orrin Hatch the Judiciary...