The Magazine

A Supreme Mess at the Supreme Court

Clintonism has infected the judiciary, too -- principles are out, partisanship and attacking your adversaries are in

Jul 17, 2000, Vol. 5, No. 41 • By JEREMY RABKIN
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And probably it isn't. We went through two days of media post-mortems after the Court's rulings on these cases came down. Liberals complained about some and conservatives complained about others and we now move on -- very quickly. Vice President Gore made a ritual appeal to abortion enthusiasts, warning that a Bush victory could lead to an anti-abortion majority on the Supreme Court. Governor Bush made his perfunctory complaint against Carhart and eagerly shifted his attention to unrelated issues. No one wanted to talk about the Court's performance on any plane higher than the immediate partisan box score. We pretend the Court is doing its job -- just like President Clinton, whose behavior, everyone agreed during the impeachment debate, had "disgraced his office" . . . but needn't prevent him from holding that office.

Can the Court really sustain this level of barely suppressed conflict, of endless shifting and maneuvering, of embarrassing contradictions? Maybe a future Court, bolstered with several Bush appointees, will do better. But the constituencies to which the Court now appeals will still have champions in the Senate, and a President Bush may wish to avoid bruising confirmation battles, as his father did. So a new Bush administration may appoint another Clarence Thomas -- or another David Souter. Meanwhile, the current justices have laid the groundwork for decrying different rulings in the future as nothing more than the political biases of a new majority. It may take a long time for the Court -- as well as the presidency -- to recover from the Clinton era.

Jeremy Rabkin teaches constitutional law at Cornell University.