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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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.