Supreme Court High Stakes: A First Look

Jan Crawford Greenburg of the Chicago Tribune raises the specter today that political expediency might steer the Bush White House away from nominating an avowedly outspoken anti-Roe candidate for the Supreme Court. The Supreme Court Nomination Blog speculates on the significance of reported statements that the President’s people have dropped strong conservative Judge Edith Jones from the list.

I don’t think there’s too much to read into this solitary report – unless you are starved for news on the subject amid the raging silence of recent days. First, Jones wasn’t very high on many experts’ A-lists as a potential replacement (even though Main Street USA reveled in her potential role as “the nuclear nominee”). Michael Luttig, Sam Alito, John Roberts, Emilio Garza, and Janice Rogers Brown have all been better bets. Second, I am inclined to believe that the shrewd Bush White House is well-prepared for the impending struggle and will probably unload a tactical surprise somewhere during the process. Third, it would be folly for the President to alienate his base and betray a campaign promise.

In light of this last point, The Weekly Standard makes for some apt reading in recent days. Fred Barnes says that the President is leaning heavily against selecting Attorney General Alberto Gonzales, a figure who seems sure to arouse discontent from both Left and Right. Terry Eastland’s “A Court at the Crossroads” details the pending Ayotte case and the significance the next nominee will have on states’ ability to legislate against partial-birth abortion.

However, perhaps the best reading of all comes from Washington-based consultants Jeffrey Bell and Frank Cannon, who take a look at the big picture: Bush’s potential to reverse the tide of the high court’s deepening politicization during the past half-century. Another nominee from a two-term Republican President set things in motion – Earl Warren. Bell and Cannon write:

Warren applied his considerable skills to mastering the internal politics of the Court. Even when the decisions he shaped were long overdue, as in Brown v. Board of Education, Warren and his majority disdained old-fashioned constitutional arguments (e.g., the dissenters’ argument against racial segregation on 14th Amendment grounds in Plessy v. Ferguson) in favor of sociological arguments, pop science, historical trend analysis, anything that came to hand–the same kinds of arguments one could expect in a political debate in Congress or the cabinet. This greatly increased the Court’s charisma as a rising political power.

The recently-retired Justice Sandra Day O’Connor (and even more recently beckoned to return to fill the Chief Justice role) has been in many ways one of Warren’s ideological heirs – with her pragmatic approach based deeper in sociological studies and popular trends than in the Constitution. According to Bell and Cannon, Bush now has his chance to put the brakes on the Court’s escalating power and return it to its traditional role:

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.

For a glimpse into just how far today’s preeminent judicial body has drifted from its earliest moorings, consider these words from John Jay in 1801 as he bid farewell to his station as the nation’s first Chief Justice of the Supreme Court:

Time and experience will correct many errors which ought not to have been introduced into public opinions. What the price of that experience may be cannot be foreseen.

They who are convinced that our constitutions ought to be maintained inviolate, and that the rights of persons and of property cannot be preserved without government constituted with power and administered with determination to secure them, will steadfastly oppose whatever may have a contrary tendency.

It is not to be expected that parties will never be intemperate. But overbearing intemperance or violence in individual leaders ought neither to appal nor inflame good citizens. On the contrary, such violations of propriety should be met with temper and moderation, as well as with increased union and firmness.

I declare to you explicitly that in my opinion we ought to resist innovation, to adhere to our constitutions and governments, to give them a fair trial, and to amend them from time to time according to the dictates of experience, and not according to the views of demagogues or the visions of theorists. [emphasis mine]

Oh, for a Supreme Court not swayed by “the views of demagogues or the visions of theorists.” What would this mean for the Kelo decision expanding eminent domain, race-based admissions standards at major universities, the overturning of laws regulating pornography and requiring parental consent for abortions? If you are in favor of any of these issues decided by our nation’s highest court, how about promoting a Constitutional amendment rather than reading some artificial evolving standard into our nation’s founding document?

The political Left in America is attempting to strengthen the barricades around its last bastion of power. Their so-called “progressive” agenda rejected repeatedly by electoral majorities, left-liberals now pin desperate hopes that they can continue to hold sway with Washington’s regal Black Robes.

I believe President Bush knows what needs to be done to restore balance and sanity to an overreaching federal judiciary and has a good idea how to get there. But the process isn’t going to be all marshmallows and gum drops. Far from it. This judicial tyranny will not be removed without vision, prudence, persistence, dedication, and a measure of sacrifice.

Editor’s Note: John Jay’s quote, while I have not located it anywhere online, can be found in William Jay, The Life of John Jay: With Selections from his Correspondence and Miscellaneous Papers (NY: J. & J. Harper, 1833), 419-420. My friend Jonathan, who is currently working on his dissertation in history at a prestigious American university, provided the quote to me during our recent email exchange that included a discussion of the Supreme Court.