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How supreme a court?

THE SUPREME COURT AND THE AMERICAN ELITE, 1789-2008 BY LUCAS A. POWE JR., Harvard University Press, 421 pages, $29.95

FOR BOTH LIBERALS AND conservatives, whether or not Barack Obama can reshape the federal courts looms as one of the great uncertainties about his presidency. Although no one knows how many or which Supreme Court justices he may have a chance to replace, he will certainly have dozens of vacancies to fill in the lower federal courts. George W. Bush stuffed these courts with reactionaries, and Obama can surely make a difference by nominating more liberal judges. Still, the Supreme Court has the last say in the federal system, and at times in our history it has spoken with a very loud voice. If Obama initiates an era of Democratic political dominance, Lucas Powe Jr.'s new book suggests what accent that voice will have.

By combining two narratives usually kept separate, Powe claims to have written a new and different history of the Supreme Court. In histories of American politics, the Supreme Court is usually a bit player, appearing on stage at special moments--say, for Dred Scott in 1857 or the New Deal cases--and then slinking back into the wings. In histories of the Supreme Court itself, on the other hand, the political background gets shortchanged. Powe's ambition is to "[situate] the Court and its work within a broad narrative of American history." And what conclusion does he reach? The Court, he finds, is a "majoritarian institution," which "identifies with and serves ruling political coalitions."

There is nothing startling about this proposition, except for those who are naive enough to think that the Court is impervious to politics and merely interprets the law in some neutral way. Of course, any nominee who wants Senate confirmation has to mouth this myth and pretend to total virginity on all controversial questions. But nobody really believes this, including (I suspect) the nominees themselves. The devil, as usual, is in the details. Just how political is the Court? And what does it mean to say that it "serves ruling political coalitions"? Is it never independent? Does it never act boldly? A lot depends on how you define your terms. It is certainly true that the Court rarely gets very far ahead of dominant opinion, or very far behind. But exactly how and why and how much are questions that are hard to answer.

Powe, who teaches law at the University of Texas, has certainly written a book that is entertaining, quirky, idiosyncratic, fun to read, and more than occasionally insightful. It does blend together legal doctrine and American politics, and as a result the history is richer--and more complete--than the usual account. Yet something is curiously lacking. The book starts with the Court's birth and takes us right up to the present. At that point, I expected a final chapter, summing up, telling us what we have learned from more than 200 years of politico-legal history. But after we reach Guantanamo Bay and other current issues, the book simply ends.

So what exactly is the relationship between the Court and its political context? There are dozens of specific examples in the book, but no general propositions emerge, except for very abstract ones. Perhaps there are none to be had. Or too many. What we do get are Powe's personal judgments, which are at times cranky and opinionated. Harry Blackmun's 1973 opinion in Roe v. Wade, Powe says, "competes successfully as the worst of the twentieth century" (Blackmun himself thought, not unreasonably, that it was legal statesmanship at its best). In general, Powe is quite harsh in his treatment of the abortion cases and surprisingly gentle on Dred Scott. But it would be wrong to think of him as the Rush Limbaugh of legal scholarship. For one thing, Robert Bork--Ronald Reagan's failed 1987 nominee to the Court--comes off even worse than Blackmun. Powe remarks that after the Senate scuttled his nomination, "an unhinged Bork" showed through his "rantings" that he was "temperamentally unfit for the Bench." This comes close to what used to be considered libel.

Is Powe right about the Court and "ruling political coalitions"? He never really defines the term (and in the title, he uses "American elite" instead). Apparently, Powe intends the phrase to mean, for the most part, the party in power and its allies. Whatever the definition, the Court's role in the political system depends on the period and the issue. Everybody knows that the modern presidency is vastly different from George Washington's, or Abraham Lincoln's, or even Franklin Roosevelt's. The same is true of the role of the Supreme Court. The role of John Marshall's court was different from that of Earl Warrens. History teaches us a lot, but it never repeats itself. America in 2009 is not the America of 1789, and the Supreme Court has been very much a creature of its times.

Is it bad to reflect the views of "ruling political coalitions"? That too depends. One of the Supreme Court's most important jobs is to create national standards and to bring the laggards into line with the majority. Take Gideon v. Wainwright (1963), one of the Warren Court's happiest decisions. The ease came out of Florida and led to the landmark ruling that a person accused of a serious crime, too poor to afford a lawyer, must be supplied with one, at the expense of the state. But most states had already recognized the right to counsel for indigents--some states as early as 90 years before Gideon. Southern holdouts had to be dragged into the modern world kicking and screaming. Or take Brown v. Board of Education (1954). Most states had already abolished segregation in the schools or never had it. Or take Loving v. Virginia (1967), which got rid of miscegenation laws. Again, most states had repealed these laws before the Supreme Court made its move. In 2003, in Lawrence v. Texas, the Supreme Court struck down all existing sodomy laws. But only a minority of states still had such laws. In all these instances, the Court reflected "ruling political coalitions," and a good thing too.

Powe mentions instance after instance, however, in which the Court was too weak or too cowardly to defy strongly entrenched public opinion, or the president, Congress, or people in general simply defied the Court, or threatened to. The Marshall Court could not save the Cherokees. Dred Scott did not prevent the Civil War; quite the contrary. During the McCarthy era, the Court did very little to curb a horrendous right-wing tsunami that swept over the country. George W. Bush's administration ran roughshod over the Bill of Rights. The Supreme Court eventually said no to some of the worst of the Bush offenses, but in the meekest and most tentative way. This was better than nothing. But it would be absurd to think the Court could or would have had much impact on the likes of Bush, Dick Cheney, and Donald Rumsfeld.

This weakness does not mean the Court is never of prime importance. Occasionally, it can and does move mountains. Historians argue about the impact of the anti-labor decisions of the late 19th and early 20th centuries. Did these decisions shape the American labor movement and retard the growth of the welfare state? There is a strong argument that the Court's impact was decisive. My view is that, despite the resistance of the South, Brown v. Board also made a significant and positive difference--and so did Roe v. Wade--but some scholars believe Brown catalyzed Southern opposition to desegregation, and Powe thinks Roe had a similar effect on the right-to--life movement. Still, without these cases, how long would it have taken to end segregation or to liberalize abortion? Surely much longer, and maybe never. And anyone who thinks the Court has no ultimate relevance is ignoring, alas, Bush v. Gore, which helped sentence us to eight years of an incompetent, disastrous, and ultra-right-wing administration.

There are also times when the Court does defy "ruling political coalitions." Despite much fumbling, the Court insists on a separation of church and state, which is surely not what most Americans want (or what Congress says it wants) on such issues as prayer in public schools. The justices have life tenure, and once in a while they decide simply to wait out a storm of protest. When the Court declared flag-burning a form of free speech, the public shrieked, and the halls of Congress rang with indignant dithyrambs of praise for the stars and stripes. But the Court stuck to its guns, and the furor died down. Flag burning, after all, was not a vital issue to most people.

What can we expect from the Supreme Court in the near future? Probably the safest bet is that the Court will not accomplish much. In the first place, the Court has (for mysterious reasons) taken to deciding fewer cases. Then, too, the Court is so fractured that it is unlikely to mount any major initiatives. In a sense, Powe's thesis rings true, if he is saying the Court can only operate within rather narrow political limits. The justices are, after all, products of their time and place. The most right-wing justice today is far more liberal on questions of race and gender--and far more committed to government regulation of the economy--than the most leftwing justice of the late 19th century.

But even a radical Court--radical right or radical left--can only do so much. The Court is not only, as the Federalist papers put it, the "least dangerous" branch, it is also the least powerful. Both Congress and the executive pack a mightier punch. Still, the president lasts at the most eight years and congressmen can (in theory) be thrown out of office, but the justices serve for life. Once in a while--especially during the Warren years--the Court reflected, not simply public opinion, not simply the "ruling coalition" but the views of the enlightened, the views of the wisest and the best. It would be wrong to expect much enlightened decision-making from today's Court. But if Obama opens a new era, it may happen again.

Lawrence M. Friedman, professor of law at Stanford Law School, is the author of A History of American Law (Simon and Schuster).
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Title Annotation:The Supreme Court and the American Elite
Author:Friedman, Lawrence M.
Publication:The American Prospect
Article Type:Book review
Date:Apr 1, 2009
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