Politics & Policy

The Problem With The Court

Well, the justices, being lawyers, think like them.

EDITOR’S NOTE: This piece appears in the November 21, 2005, issue of National Review.

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.

#ad#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…

YOU CAN READ THE REST OF THIS ARTICLE IN THE CURRENT ISSUE OF THE DIGITAL VERSION OF NATIONAL REVIEW. IF YOU DO NOT HAVE A SUBSCRIPTION TO NR DIGITAL OR NATIONAL REVIEW, YOU CAN SIGN UP FOR A SUBSCRIPTION TO NATIONAL REVIEW here OR NATIONAL REVIEW DIGITAL here (a subscription to NR includes Digital access).

Most Popular

White House

Another Warning Sign

The Mueller report is of course about Russian interference in the 2016 election and about the White House's interference in the resulting investigation. But I couldn’t help also reading the report as a window into the manner of administration that characterizes the Trump era, and therefore as another warning ... Read More
World

What’s So Great about Western Civilization

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Redacted: Harm to Ongoing Matter), One of the things I tell new parents is something that was told to me when my daughter still had that ... Read More
White House

The Mueller Report Should Shock Our Conscience

I've finished reading the entire Mueller report, and I must confess that even as a longtime, quite open critic of Donald Trump, I was surprised at the sheer scope, scale, and brazenness of the lies, falsehoods, and misdirections detailed by the Special Counsel's Office. We've become accustomed to Trump making up ... Read More
Film & TV

Jesus Is Not the Joker

Actors love to think they can play anything, but the job of any half-decent filmmaker is to tell them when they’re not right for a part. If the Rock wants to play Kurt Cobain, try to talk him out of it. Adam Sandler as King Lear is not a great match. And then there’s Joaquin Phoenix. He’s playing Jesus ... Read More
U.S.

Supreme Court Mulls Citizenship Question for Census

Washington -- The oral arguments the Supreme Court will hear on Tuesday will be more decorous than the gusts of judicial testiness that blew the case up to the nation’s highest tribunal. The case, which raises arcane questions of administrative law but could have widely radiating political and policy ... Read More