Book Excerpt: 'Supreme Conflict'


Liberals believed that was an entirely proper role for the Court, especially since the other branches of government had failed so miserably in the area of civil rights. The Court was supposed to protect the rights of the minority against the will of the majority. If judges would not, they said, perhaps no one would. That approach encouraged the justices to identify new constitutional rights, especially in situations the document's framers could never have imagined two hundred years earlier. As society changed, the understanding of the Constitution should change with it, liberals believed, and the justices should help foster the progression.

Conservatives saw a Supreme Court that had arrogantly grabbed power for itself. By deciding those issues and creating new constitutional rights, conservatives believed, the justices usurped the role of elected officials, who were closer to the people and more accountable for their decisions at the ballot box. That struck at the heart of democratic participation, they believed. After all, voters aggrieved by their elected officials could campaign for change. But if the Court's unelected judges made all the decisions, the electorate had no leverage and little incentive to get involved in the debates.

As it happened, many politicians came to welcome the Court's intervention in contentious issues. It often saved them from making the tough calls. A politician could vote for extremely strict regulations on abortion, for example, knowing a court would step in and reverse them. His vote would have no practical impact, other than as a campaign slogan. A Maryland state senator candidly summed up that sentiment during a 2006 debate in his state legislature over whether to allow gay marriage, an issue that had bitterly divided his constituents. "I'm just hoping and praying the courts will step in," he said.11

For four decades, Republican presidential candidates had campaigned on constraining the Supreme Court's role in American life. But once elected, they'd had little success in doing so. The Warren Court soared so high and fast that it created a draft that swept the next Court, led by conservative Chief Justice Burger, right up with it. When Rehnquist took over in 1986, conservatives assumed his Court would pull back. Instead, it merely slowed down the constitutional crank, without turning it back the other way.

Sandra Day O'Connor's retirement offered a long-awaited opportunity to finally change the Court's direction—but only if conservatives didn't blunder through the process as they had in the past.

Justices -- especially presumed conservative ones -- have sometimes surprised the presidents who appointed them. Theodore Roosevelt said he could "carve out of a banana a Judge with more backbone" than Oliver Wendell Holmes. Harry Truman suffered a stinging setback when two of his four appointees voted to strike down his claims of presidential power to seize the nation's steel mills in 1952, and he called Justice Tom Clark "my biggest mistake." Dwight Eisenhower reportedly said his two worst mistakes as president both sat on the Supreme Court: William Brennan and Earl Warren, who became the ideological leaders of the most left-wing court in history. "Packing the Supreme Court simply can't be done," Truman said. "I've tried it, and it won't work."

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