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
More

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.

Most important, the Court is more aware of and responsive to public opinion than many people imagine—although not in the crass sense that justices consult opinion polls before handing down decisions. The justices know that the political system has ways of reining in the Court. And when the Court has been wildly out of step with public opinion over any extended period of time, it has been the Court, not the public, that has eventually had to yield, if only by attrition. Franklin D. Roosevelt's infamous Court-packing plan failed, for example, but Roosevelt ultimately succeeded in filling the Court with justices who would uphold overwhelmingly popular New Deal programs. The genuinely unpopular excesses of the Warren Court in deferring to the rights of accused criminals triggered the law-and-order-oriented presidential campaign of Richard Nixon in 1968. Following his election Nixon consciously sought to put people on the Court who would be (as he privately urged Rehnquist to be at the time of his nomination) "mean and rough."

Justice Scalia, fretting about freewheeling methods of constitutional adjudication, once wrote, "If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that." This observation may not be cause for quite the alarm it provokes in Scalia, but it is certainly accurate as a reflection of the Court's relationship to public opinion over time.

The mythology surrounding the Court holds that it is a counter-majoritarian institution—that is, that it acts as a check on the impulses of the more democratic branches of government. This is true—but only to a point. Michael Klarman, a professor of law at the University of Virginia, argued in a 1996 article that the Court generally functions less as a check on the majority will than as an agent of it. "Frequently the Court takes a strong national consensus and imposes it on relatively isolated outliers," Klarman wrote. "Infrequently the Court resolves a genuinely divisive issue that rends the nation in half; on these occasions, roughly half the country supports the Court's determination." Klarman contended that even in those areas where the Court's heroic posture departed most famously from popular opinion—race discrimination, freedom of speech, separation of Church and State, and criminal procedure—its changes were "congruent with and dependent upon the broad sweep of historical forces." He wrote, "The Court was not, in any strong sense, being countermajoritarian."

This tendency helps explain why the Court retains high approval ratings—and, for that matter, why abortion rights remain constitutionally protected despite a number of conservative appointments. (Abortion rights are, after all, favored by a solid majority of American voters.) Praise the tendency as political savvy or damn it as a failure of principle in the face of crass politics, but the Court's institutional conservatism has proved to be far more powerful in the long run than either ideology or partisan politics. And in the broad scheme of things it will most likely continue to guide the Court, whether the nominees who are confirmed in the coming years are George W. Bush's or John Kerry's.

Ironically, perhaps the gravest threat to the judiciary lies in the very "courts in peril" scare talk that both sides use. The result of such overheated rhetoric is that nobody with strong convictions of any sort—in other words, nobody likely to buck the majoritarian instincts and institutional caution of the Court—can get confirmed, so the Court becomes a bland institution of consensus moderation. Ronald Reagan couldn't get his conservative nominees, Bork and Douglas Ginsburg, confirmed, and had to settle instead for Anthony Kennedy, who has proved far mushier and more centrist. Bill Clinton didn't even try to appoint staunch liberals but, rather, named two lawyerly moderates, Ruth Bader Ginsburg and Stephen Breyer. George W. Bush's inability to get Miguel Estrada—who was reputed to be a conservative but had no history of public statements—onto a lower court suggests that even another stealth nominee like Thomas may now fail to get through. Realistically, the Senate's aggressive posture on judicial confirmations means that a President can nominate with confidence only someone who is demonstrably acceptable to the opposite party. The zeal of both sides to ensure that the Court is not dominated by either Scalias or Brennans creates the very real possibility that it will be composed of Kennedys and Sandra Day O'Connors. For those who recognize the contributions to the Court that have come from its margins (and those contributions are enormous), this should be of no small concern. But it's not the worry people will be shouting from the rooftops in the weeks before the election.

Benjamin Wittes is an editorial writer specializing in legal affairs for The Washington Post and the author of Starr: A Reassessment (2002).
Jump to comments
Presented by
Get Today's Top Stories in Your Inbox (preview)

Social Security: The Greatest Government Policy of All Time?

It's the most effective anti-poverty program in U.S. history. So why do some people hate it?


Elsewhere on the web

Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register. blog comments powered by Disqus

Video

Adventures in Legal Weed

Colorado is now well into its first year as the first state to legalize recreational marijuana. How's it going? James Hamblin visits Aspen.

Video

What Makes a Story Great?

The storytellers behind House of CardsandThis American Life reflect on the creative process.

Video

Tracing Sriracha's Origin to Thailand

Ever wonder how the wildly popular hot sauce got its name? It all started in Si Racha.

Video

Where Confiscated Wildlife Ends Up

A government facility outside of Denver houses more than a million products of the illegal wildlife trade, from tigers and bears to bald eagles.

Video

Is Wine Healthy?

James Hamblin prepares to impress his date with knowledge about the health benefits of wine.

Video

The World's Largest Balloon Festival

Nine days, more than 700 balloons, and a whole lot of hot air

Writers

Up
Down

More in Politics

More back issues, Sept 1995 to present.

Just In