The problem with the court: well, the justices, being lawyers, think like them

All across the political spectrum, observers have recognized the pivotal significance of Samuel Alito's nomination to the Supreme Court. With Judge Alito replacing Harriet Miers as the likely successor to the meandering Sandra Day O'Connor, President Bush has set the stage for a debate about a fundamental shift in the direction of the Court. Yet in order to fully appreciate the gravity of the confirmation battle that is about to ensue, it is first necessary to understand the distressing course the Court has taken over the past 35 years.

By 1972 President Nixon had placed Justices Burger, Blackmun, Rehnquist, and Powell on the high court. He did so after making the judicial activism of the Warren Court a major campaign issue. Since then, Republican presidents have appointed seven justices, all for the announced purpose of curbing the tide of judicial activism. Even President Clinton's two appointments, Stephen Breyer and Ruth Bader Ginsburg, were presented as moderates who would refrain from adventures on the bench. In short, for roughly three-and-a-half decades, the politics surrounding the Supreme Court have been dominated by promises of judicial restraint. During that time the Court has been packed with Republican nominees, and we have heard continuously--from presidents and nominees alike--that judges should not make the law, but rather simply apply it.

While it is widely recognized that these assurances have not exactly been translated into action, it is difficult to grasp the full scope of the failure. The problem begins with the fact that neither the Burger Court nor the Rehnquist Court reversed even one of the Warren Court's egregiously activist decisions establishing new individual rights. In fact, a few years before he died, Chief Justice Rehnquist himself wrote a decision emphatically reaffirming the notorious ruling of Miranda v. Arizona, which requires police to inform criminal suspects about their right to remain silent before questioning them.

The conservative instinct to respect precedent might be thought to explain this sustained refusal to reverse course, but it cannot explain why so many Warren Court rulings have been recklessly expanded. It cannot explain, for example, the Burger Court's transformation of a principle against legally enforced segregation into a demand that school districts achieve racial balance through extensive busing programs. Nor can it explain the Rehnquist Court's expansion of earlier, limited rulings on the separation of church and state into an aggressive campaign to stop even the slightest appearance of government endorsement of religion, including non-denominational prayers at school graduations, student-led prayers at football games, and public displays of the Ten Commandments.

But even this is only the tip of the iceberg. Since 1970 the Court has established new rights undreamt of during the Warren Court era. Everyone knows of a few outrageous examples, such as Roe v. Wade, but the record does not end there. The original abortion decision, which was itself roundly condemned by legal scholars as having no legal justification, has been gradually extended to grant abortion rights to minors and to protect even partial-birth abortions. Indeed, in voting to reaffirm Roe, three Republican appointee--O'Connor, Kennedy, and Souter--made the most extreme claims for judicial power ever articulated in American history.

The Court's record of activism is not confined to a limited set of highly visible issues, but rather extends to every corner of public life. It includes an extensive campaign to transform gender roles, as well as significant efforts to rewrite defamation laws in all fifty states. It has manifested itself in decisions to protect pornography and nude dancing and offensive language, to require free public education for the children of illegal aliens, and to normalize homosexuality. In a mostly forgotten foray, the Court once even adopted counterculture guru Charles Reich's theories to announce that public assistance is a property right, and that sixth-grade schoolchildren must therefore be given a hearing before being suspended. This has resulted in far-reaching and destructive changes, both to public administration and to educational discipline.

PICK YOUR EXPLANATION

It would be an understatement to say that 35 years of appointing justices for the announced purpose of reining in the Court has not worked. The most common explanation for this sad failure is the Souter Explanation, so called because when David Souter was nominated to the Court, he had almost no public record on any important constitutional issue. Of course, he soon turned out to be one of the most liberal members of the Court. From this, it has been assumed that an accurate prediction regarding the future behavior of a judicial nominee requires a healthy amount of accurate information about his track record. But while the prepossession of such information may be a necessary condition for choosing nominees who will restrain the Court's power, it is clearly not sufficient. After all, there are many examples of people who did have extensive public records before their nominations--people such as ex-governor Earl Warren and ex-politician and judge Sandra Day O'Connor--but who nonetheless turned out much differently than their records would have suggested.