The Law November 2004

Supreme Irony

As elections near, partisans always invoke a threat to the "balance" of the Court. But the real peril isn't ideology—it's blandness

According to a New York Times editorial, George Bush says that if re-elected, he would "try to finish packing the [Supreme] Court against Roe v. Wade, the decision validating abortion rights, which four members say they want to strike down." If voters elect a Democratic President, the Republican candidate predicts, they "could lock in liberal judicial activism for the next generation," and "the social landscape could dramatically change." The televangelist Pat Robertson reminds the faithful that "five people can decide the destiny of unborn children [and] whether we can pray or not pray." But, he says, "it looks as if two or three of those unelected officials are getting ready to retire or go on up to that great court in the sky." The liberal columnist Anthony Lewis forecasts that a Republican victory will portend Supreme Court nominees who, like William Rehnquist, are "judicial ideologue[s] of the right."

Any of these warnings could have come out of yesterday's newspaper. But in fact none of them is recent. The Times was worried, back in 1992, about what would happen if the elder President Bush was re-elected. The Republican candidate fretting about liberal judicial activism was not George W. Bush but Bob Dole, in 1996. Robertson was predicting the death of justices (all of whom are alive and well) four years ago. And Lewis was writing about Ronald Reagan's ambition, way back in 1980, to nominate other justices like Rehnquist.

This year, once again, the fate of the courts is a base-rallying point for both parties. As of this writing the candidates themselves were largely avoiding the issue, but the rhetoric from interest groups supporting both Bush and Kerry comes straight from the old script: Vacancies are inevitable. The balance of the Supreme Court is at stake. If you're a liberal, Roe is in grave peril and the right threatens a "rollback" of everything you hold dear. If you're a conservative, the Court is on the verge of imposing an anti-religious social agenda on your family and community. Either way, justice in America is an out-of-control car speeding toward the edge of a cliff, and only a vote for [fill in your candidate here] can prevent it from plunging over the edge.

Yet this same car has been speeding toward this same cliff for decades, and it never actually seems to reach the edge. This election isn't likely to change that. To be sure, diehards on both sides think Armageddon is already upon us: some conservatives see grave judicial usurpations in, for example, the Court's ban on the death penalty for the mentally retarded and its upholding of affirmative action; some liberals see Bush v. Gore and a few cases about the Eleventh Amendment as the modern equivalents of Dred Scott. (Quick quiz: What is the Eleventh Amendment?)

But the public isn't buying it. Polling data from Gallup show that Americans have long held the Court in higher regard than they do the executive branch or Congress. Since 1973, moreover, Gallup has asked how much confidence Americans have in a broad range of institutions, the Court included. Their answers have been remarkably stable over time: those expressing a "great deal" or "quite a lot" of confidence in the Court have ranged from a high of 56 percent in the mid-1980s to a low of 39 percent in 1991. A recent poll, taken in May, showed 46 percent expressing strong confidence in the Court. If we include those who expressed "some" confidence, the figure jumps to 83 percent. Clearly, the public doesn't see the Supreme Court as out of step with where it ought to be, or on the verge of imposing values antithetical to those of mainstream America.

I suspect that these Americans have discerned a truth that activists and partisans on both sides of the aisle—along with many members of the press—fail to comprehend: The Supreme Court is not a radical institution, nor is it likely to become one as a result of any particular election. The stakes for the judiciary in presidential elections, including this one, are a lot lower than many people imagine.

This is not because no significant ideological or methodological differences divide judges. Differences do exist, and they track party affiliation to some extent. And they matter—not just on hot-button issues such as abortion rights and affirmative action, but also in those run-of-the-mill cases (about which the public doesn't care) that actually guide the way lower courts handle huge swaths of law.

That said, the courts have pretty strong institutional defenses against radicalism of any kind. For one thing, the judiciary's power is spread among more than 800 federal judges, no one of whose views matter all that much in the broad scheme of things. Even on the Supreme Court the idiosyncrasies or ideological extremism of any one justice can have only a limited effect. Without four like-minded comrades his or her views are just noise. For another thing, the confirmation process offers a check, particularly now that senators of both parties are so likely to oppose nominees with whose views they disagree. It's hard to imagine that either the conservative Antonin Scalia, who was unanimously confirmed as recently as 1986, or the Court's late liberal icon William Brennan could win confirmation today. The Senate, quite simply, is far more aggressive than it used to be in asserting its power to advise and consent on judicial nominees. Clarence Thomas, the only strongly ideological nominee confirmed since Robert Bork's rejection by the Senate, garnered confirmation in large measure by masking his views. Indeed, Presidents haven't proved particularly adept at assessing a judge's ideological leanings; justices from Byron White to David Souter have disappointed whichever party was responsible for their accession. Life tenure for judges was instituted to ensure their independence, and it does just that—particularly as the controversial issues of one era give way to those of the next, and justices find themselves facing issues undreamt of in their confirmation hearings.

Presented by

Benjamin Wittes is an editorial writer specializing in legal affairs for The Washington Post and the author of Starr: A Reassessment (2002).

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