The Magazine

The Bush Supreme Court

From the July 18, 2005 issue: The president will be judged by the justices he picks.

Jul 18, 2005, Vol. 10, No. 41 • By FRANK CANNON and JEFFREY BELL
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AS PRESIDENT BUSH EXAMINES HIS Supreme Court options, he almost certainly understands that a year from now, his performance will be evaluated mainly on whether he confirmed the unelected Court's centrality in American politics, or took a historic first step in beginning to curb that centrality.

A year from now, he will have had two openings to fill--the seats of Justice Sandra Day O'Connor and of Chief Justice William Rehnquist, who is unlikely to attempt to preside over another full term. At the moment no one else on the Court seems inclined to retire, and Bush may never see a third opening. Since the first term of Richard Nixon, no president has had to fill more than two vacancies in a single four-year term.

The situation Bush faces now is similar to what Bill Clinton faced in 1993-94. One conservative and one liberal retired then, one conservative and one liberal are retiring now. Clinton used his picks to push the Court one click to the left. Picking liberals Ruth Bader Ginsburg and Stephen Breyer to replace conservative Byron White and liberal Harry Blackmun meant a 5-4 majority to uphold Roe v. Wade became 6-3. It meant a 5-4 majority against gay rights became 5-4 in favor (eventually 6-3 when Justice O'Connor added icing to the cake by reversing her 1986 position in 1996). By almost any calculation, it was very good news for the liberal cause on a range of other issues, including affirmative action, capital punishment for minors, and prayer in public places.

If a year from now Bush has won confirmation for two conservatives, regardless of who the new chief justice is, the pro-Roe majority goes from 6-3 back to 5-4, with at least an outside chance of pro-life forces prevailing on the parental notification case to be decided in the coming term; a probable 5-3 majority for removing "under God" from the Pledge of Allegiance will become an inconclusive 4-4 (Justice Antonin Scalia has recused himself from voting on this issue); and the survival of racial preferences in universities and elsewhere would be in serious doubt.

Equally important would be the impact of such a shift on the psychology of the Court and its politics. Much of politics is momentum. The momentum of the Court toward being a pivotal political power center, rivaled only by the presidency, was resented by Dwight Eisenhower. It was actively fought in the administrations of Richard Nixon and Ronald Reagan. But both these presidential fights failed because an elective institution, in each case a Democratic-controlled Senate, inflicted devastating rebukes to the White House in 1969, 1970, and 1987. The nominees who filled the seats intended for Clement Haynsworth and G. Harrold Carswell (Nixon) and Robert Bork (Reagan) were Harry Blackmun and Anthony Kennedy. Both these men, after an interval of ambiguity, joined the liberal wing of the Court, confirming and raising the morale of the Court in its drive to power.

How did the Court become so politicized? At times in the past, the Court reached for power and found itself thwarted by strong presidents using their elective mandates--Jackson, Lincoln, arguably Franklin Roosevelt in his court-packing campaign in the 1930s, which ended in a kind of stalemate, with the Court maintaining a degree of independence while tacitly ending its campaign to invalidate the New Deal.

The pivotal figure in successfully elevating the Court was a gifted, ambitious, liberal politician, three-term California Governor Earl Warren. Defeated for the 1952 Republican presidential nomination, Warren was appointed chief justice in 1953 by the man who had blocked him, Dwight Eisenhower. One of the first things Warren did was rename his office. His predecessor, Fred Vinson, and all earlier occupants were Chief Justices of the Supreme Court. Earl Warren styled himself Chief Justice of the United States.

Warren applied his considerable skills to mastering the internal politics of the Court. Even when the decisions he shaped were long overdue, as in Brown v. Board of Education, Warren and his majority disdained old-fashioned constitutional arguments (e.g., the dissenters' argument against racial segregation on 14th Amendment grounds in Plessy v. Ferguson) in favor of sociological arguments, pop science, historical trend analysis, anything that came to hand--the same kinds of arguments one could expect in a political debate in Congress or the cabinet. This greatly increased the Court's charisma as a rising political power.

In recent months, we have heard debates over who first subjected court appointments to partisan fratricide--did it start with Bork, or earlier?--and the Democrats' trump card has always been the anti-Abe Fortas filibuster of 1968, in which conservative senators, mainly Republican, led by Michigan's Robert Griffin, prevented a vote on LBJ's choice for chief justice, Abe Fortas.

What has been less often mentioned is that Warren created that crisis, by attempting to time his retirement to coincide with the tail end of the already defunct Johnson presidency. Yes, Warren was a nominal Republican, but the Court had become such a power center in his 16 years as chief justice that its role was already becoming a point of partisan difference, with Democrats favoring a powerful, politicized court and Republicans increasingly alarmed. No less than the mortally wounded Johnson anointing Hubert Humphrey as his chosen successor, Warren was anointing his close court ally Fortas as his successor in the now nearly co-equal position, Chief Justice of the United States. Normally mild-mannered Republican senators, joined by enough conservative Democrats to sustain a filibuster, unexpectedly gagged at the new level of institutional centrality Warren was tacitly demanding.

The allure of the Court as power center has long since infected most of the legal profession. Thirty years ago, Yale Law School was seen as the center of judicial activism, Harvard as more traditional. Today virtually every law school is Yale. Legal elites have shepherded most of the profession into a tacit acceptance of the higher professional status Warren-style activism implies.

That is why there can be no such thing as a "stealth strategy" for conservative appointees. Opposing Warren-style activism implies not just a deeply held judicial philosophy, but the kind of strong, stubborn character needed to go against the grain of one's entire profession and its perceived self-interest. In the real world of 2005, no such lawyer exists as a secret devotee. All the professional brilliance and Clinton connections in the world could not disguise Miguel Estrada from Sen. Charles Schumer.

If a year from now, two strong conservatives have been added to the Court, a historic momentum shift, one that eluded Nixon and Reagan, may well have begun. If not, the hegemony of an unelected professional elite will continue and deepen, perhaps not to be reversed for another generation or more. Both sides of this now decades-long struggle will be well aware of the outcome.

Jeffrey Bell and Frank Cannon are principals of Capital City Partners, a Washington consulting firm.