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The Supreme Court on TrialJames MacGregor Burns takes aim at the bench.

By Emily BazelonPosted Monday, July 6, 2009, at 10:00 AM ET

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But set aside that quibble, because Burns' larger argument about the court's failings wears well through his historical narrative. "Inevitably, life tenure has produced a critical time lag, with the Supreme Court institutionally almost always behind the times," he writes. "As a result, too often the Supreme court has seemed to be fighting the progress of history." Of this, there are all too many examples. In the 19^th century, Burns points to the wrong and immodest Dred Scott decision, in which the court declared that no black person could claim national citizenship. There was also the court's gutting of Congress' Reconstruction-era promises of equal rights in the 14^th Amendment, culminating in the disastrous separate-but-equal principle enshrined in Plessy v. Ferguson. In the beginning of the 20^th century, the court stubbornly clung to laissez-faire economics, as demonstrated by its aversion to state laws that protected workers, most famously in Lochner v. New York. Burns catalogs the justices who made these rulings and shows how many of them were political operatives and small-town lawyers, many of whom stuck around for decades. Most of their names have been forgotten, even in law-school classes (at least if my memory is any indication). With all the (unjustified) talk of whether Obama's current pick for the court, Sonia Sotomayor, is brainy enough for the job, it's worth remembering that in the past, intellectual pygmies rather than giants have been the rule on the Supreme Court.

During the Warren Court era, with spillover into the Burger Court of the 1970s, the court stopped striking down anti-establishment laws* and started interpreting the Constitution to find new protections for criminal defendants, minorities, women, and other formerly dispossessed groups. This "seduced" the left, as Burns puts it, "into the belief that the court, not the political branches, with their fickle, opportunistic politicians and swayable constituencies, was the best constitutional vehicle to extend and protect progressive gains into the future." Burns rues this love affair as short-sighted. Once the Rehnquist Court got up some steam, the court reverted to its old progress-stopping ways. It struck down more federal statutes than ever before, but now they were the kinds of laws that sought to regulate big business, or to ensure religious freedom, or to give women the right to bring a federal suit against a batterer. And then, of course, came Bush v. Gore, the quintessential example of conservative judicial activism.

And yet you have to reach back to find liberal politicians willing to attack the Supreme Court. Teddy Roosevelt railed at the high bench as "a menace to the nation" when it blocked his progressive-era efforts to rein in laissez-faire economics, and went so far as to push for recall votes of judicial rulings, via referenda. FDR's plan to increase the number of justices from nine to 15 (the usual meaning of court packing) followed from an earlier proposal that would have allowed Congress to re-enact a law that the court had declared unconstitutional. Other stillborn plans to limit the court's sway: ending the justices' life tenure and requiring a supermajority of them to strike down a congressional statute.

Go back to the question about why unelected judges should have such outsized power in a democracy, as well as to the shaky foundation of Marbury, and you can see why Burns' vision of a president who quietly tells the court to get lost isn't necessarily a nightmare. And yet I can't really go there. Would we really be better off placing more faith in Congress or a shades-of-Cheney strong executive?

Maybe I'm only revealing that I'm among the seduced, but it seems to me that often the Rehnquist and Roberts courts have saved themselves by stepping back from the brink of crazy-bad meddling with Congress. In the term that just ended, the justices looked poised to declare two foundational civil rights laws unconstitutional. And then they didn't. We don't know why. But as Jack Balkin argues on his blog, Balkinization, it's possible that the justices (or at least swing-justice Anthony Kennedy) read the changed weather pattern that was the Obama election cycle and decided that the court should not risk "sacrificing the Court's legitimacy in a climate in which neither the President nor the Congress would support their gambit and would in fact do everything possible to undermine their legitimacy." Maybe the justices know just what it takes to keep their seats and have no intention of losing them.

Correction, July 7, 2009: This article originally stated that the Warren court stopped striking down laws that helped the establishment. The author meant to write that the court stopped striking down anti-establishment laws. (Return to the corrected sentence.)

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Emily Bazelon is a Slate senior editor and an editor of DoubleX.

COMMENTS

Seems to me that tenure, a peripheral issue in this discussion, should really be regarded as the centrally obnoxious feature of the court's makeup, which contributes critically to its mediocrity and lack of responsiveness, to say nothing of the dispiriting nature of appointment battles.

As an alternative to the radical surgery of undoing Marbury, how about giving up lifetime tenure for federal judges? If we limited everyone to one 10-year term (say) for each of district, appeals, and supreme court levels, it seems to me that that would draw much of the poison from appointment politics, and naturally bring court culture more closely in sync with the nation. We might wind up limiting the "contributions" of talented jurists with more to give, but it's not as if the U.S. is short of legal talent. The depth of the bench (hah!), which is otherwise an embarrassment in our heavily over-lawyered culture, actually would work in our favor if we started rotating lawyers in --- and out --- of the federal judiciary.

I realize that takes an amendment, which is hard. Seems worth it, though.

-- Carlo Graziani
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