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.

The deficiency of the Souter Explanation leads to the Kennedy Explanation, which posits that nominees are subjected to intense pressure to undergo radical ideological changes once they get onto the Court. Much of this pressure is thought to be social, as new justices come to live in Washington, D.C., where a large bulk of the residents think that the purpose of life is to exercise political power over others. They begin to read the Washington Post, and they socialize with elite liberal law professors. If they are like Justice Kennedy--who is especially fond of relying on foreign legal sources when interpreting the American Constitution--they attend international judicial conferences where the prevailing belief is that judges are the ultimate guardians of civilized values everywhere.

Like the Souter Explanation, the Kennedy Explanation surely contains some truth. But it also has its problems, as most people who come to be justices have already spent significant stretches of time as powerful appellate lawyers or ambitious executive-branch officials. Thus it seems that many of the corrupting pressures should go to work--and therefore become detectable--long before the nomination and confirmation processes begin.

A third and fuller explanation of judicial activism is so obvious that it is generally ignored. Simply put, people who are put on the Supreme Court are almost always successful lawyers. This means that they tend to be adept at--and therefore not inclined to be skeptical of--the way lawyers and judges think. And the way that lawyers and judges think is one of the basic reasons that we have such a powerful judiciary.

Consider first the basic legal instinct to respect and follow the logic of prior cases. The consequences of this instinct are almost always underestimated. In fact, firmly entrenched lines of cases now establish the basically liberal direction of the Court, all across the board. It is now settled precedent that government cannot endorse religion, that a generalized right to privacy is part of the Constitution (and that this right applies to an open-ended array of issues involving sexuality and family life), that pornography is protected by the First Amendment, and that equal protection requires the invalidation of any legislative distinction that judges consider irrational. Even the reversal of one or two landmark cases, such as Roe v. Wade, would not significantly alter the fundamentally interventionist jurisprudence of the Court.

More generally, many lines of cases now hold that the courts must decide whether an interest asserted by the government to justify a statute is illegitimate or, if legitimate, how important it is. These same legal doctrines also require judges to decide whether the legislature has chosen the best or most effective way of achieving its interests. This is to say that it is now normal and required practice for judges to make essentially the same kinds of assessments about the wisdom and efficacy of legislation as legislators do. It is easy to say at a confirmation hearing that judges should not legislate from the bench, but dozens of authoritative cases require that they do. Indeed, the line between a legal and a political judgment has been obscured to the vanishing point.

Respect for precedent is only one aspect of a broader inclination in the legal profession to honor authority generally and the judiciary especially. This inclination has natural appeal, especially for conservatives, but it has been taken so far in the nation's law schools that the Supreme Court is commonly depicted as an indispensable political and moral leader: Its role in cases such as Brown v. Board of Education was nothing less than to save the country from profound moral paralysis; its function in cases involving Nixon's Watergate tapes and the 2000 Florida election dispute was to save the political system from chaos and fecklessness. It is this same grand view of the centrality of judicial power that caused three Republican appointees in Planned Parenthood v. Casey to write that opposition to the Court's decision in Roe threatens the American constitutional system.

WORDS, WORDS, AND MORE WORDS

At its best and highest levels, the practice of law involves the marshalling of rational arguments and the imposition of order on complex factual disputes. It is a profession that honors detachment, discipline, intellect, and, above all, words. As valuable as these traits can be, those who are trained to rely on them in their daily work can easily become distrustful or even disdainful of the political process because that process involves unruly conflict, raw power, and emotionality. In politics the strongest arguments do not always prevail, and words are sometimes less important than experience; failure, disorder, and even disaster are always possibilities. Judges, who occupy an even more controlled environment than do practicing lawyers, often view the outcomes of the political process as irrational, unjustifiable, or excessively risky.

Finally, it is now accepted by the bulk of the legal profession, including many of its most influential scholars and successful practitioners, that there is no single correct method for interpreting the Constitution. As now-Chief Justice John Roberts said at his confirmation hearings, the correct sources of constitutional meaning vary depending on the nature of the case. Sometimes a justice should look at the plain meaning of the text, but sometimes that can be overridden by historical information or by the overall logic of the document or by changes in social conditions or by evolving political practices or by philosophical considerations. This is what most sophisticated lawyers believe, and it shapes the way they formulate their arguments.

This flexible variety of interpretive methods may sound reasonable enough, but in operation it means that judges are tree to move from one method or combination of methods to another. This in turn means that the justices are free in a very real sense to give whatever meaning they wish to the Constitution. If the literal meaning of the text seems unfortunate in a particular case, it is permissible to shift to some other source of meaning until the result seems acceptable. A justice committed to widely accepted understandings about what it is to engage in interpretation, then, is committed to a method that permits the justice's preferences to displace constitutional meaning. This is not left-wing excess; it is mainstream legal thinking.

If the root cause of judicial excess is the way lawyers think, what is to be done? Certainly, it is necessary to continue to study the records of judicial nominees carefully. But accurate predictions about specific positions that a nominee will take once on the Court, even if they are possible, will not change the basic direction of the Court. To do that it is necessary to look for those lawyers who are confident enough and independent enough to challenge established patterns of thought and to resist deeply ingrained instincts. It is clear that such lawyers exist, as both Justices Thomas and Scalia demonstrate, but to find them it is necessary to look beyond credentials and ideology.

It is necessary also to recognize that even at their best, the nomination and confirmation processes may never be fully adequate to restrain the Court. In this event, renewed attention needs to be directed at other political checks on the federal judiciary. Congress so far has lacked the political will to enact jurisdiction-stripping legislation or to reverse egregious judicial errors through constitutional amendment. This failure means that for some 35 years, we Americans have been more interested in the melodrama of confirmation hearings than in real change.

Mr. Nagel is a law professor at the University of Colorado, Boulder.