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SUPREME COURT HISTORY
The Future of the Court
Court History
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Roberts, of course, has strong views, and some conservatives hope that he and his fellow Bush appointee, Samuel J. Alito, will lead the Court in a more conservative direction. But history once again suggests that the Court tends to move to its own rhythms, which are seldom in lockstep with those of any single president. Franklin D. Roosevelt, with nine appointments, solidified the death of conservative laissez faire judicial activism and the growth of judicial deference in economic affairs. By contrast, Richard M. Nixon, with four appointments, never succeeded in rolling back the Warren Court tradition of vigorously protecting civil rights and liberties. Indeed, since 1968, Republican presidents have pledged to appoint justices who will uproot the legacy of Earl Warren but have been only partly successful. Under William Rehnquist's leadership, the Court continued to protect individual rights -- striking down federal and state laws at a higher rate than any other Court in history -- while showing slightly more concern about states' rights than its more liberal predecessors.

Constitutional futurology, of course, is always an inexact science. The issues that transfix one generation are seldom the ones that will seem most important to the next one. This is why Supreme Court confirmation hearings have a knack for fighting the last battle. When he was nominated for chief justice in 1986, for example, William Rehnquist was asked extensively about memos he had written as a law clerk for Justice Robert Jackson in 1952 that seemed to question whether the Court should strike down school segregation. In the process, the Senators largely missed the great issue that would come to define the Court during Rehnquist's tenure -- the proper balance between the states and the federal government.

Although it is impossible to predict with confidence the precise subjects the Court will face over the next 25 years, they are sure to look different from the ones that excite us today. For example, concerns about the legal status of abortion may be overshadowed by new issues engendered by increasing access to in vitro fertilization -- which may potentially allow parents to select not only the sex of children but also their intelligence, eye color, sexual orientation, and height. It is easy to imagine fierce battles over the extent of reproductive choice outside the womb, battles that may well end up before the Court. By the same token, as fears of terrorism continue, we will continue to see battles between the president and Congress about the scope of appropriate surveillance technologies, and also about which branch is entitled to use them and under what circumstances. As brain-imaging technology becomes more precise, it is even possible to imagine attempts to profile or even imprison suspects based on their apparent propensity to commit future acts of violence. How, precisely, the Supreme Court would divide over these vexing issues -- and others that escape our current vision -- is hard to imagine.

Although the Court is not an explicitly political institution, its legitimacy has always depended on the degree to which the public ultimately accepts its decisions. This is why the justices have been wise, over time, to reflect the views of national majorities more often than challenging them, recognizing that intensely high-handed decisions may provoke popular backlashes. Part of the success or failure of the Roberts Court will rest on its ability to produce decisions that are accepted by a majority of the country as being rooted in constitutional principles rather than partisan politics. Roberts is right to try to lead the Court toward decisions that will be accepted in precisely this way. His success in doing so will turn not only on his judicial philosophy and that of his colleagues but also on their judicial temperaments. It is too early in Robert's tenure to evaluate his success, but it will become clear over time whether Roberts, like many of the Court's most effective leaders before him, will be able to use his intellectual and personal skills to unite the Court around him.

About the Author
Jeffrey Rosen is a Professor of Law at George Washington University and legal affairs editor of the NEW REPUBLIC. He is the author of the companion book to the PBS Series, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA (Times Books).
Photo of President George W. Bush and Samuel Alito.
On October 31, 2005, President George W. Bush nominated Samuel Alito to the Supreme Court.

Reproduction courtesy of Whitehouse.gov


Did You Know? Chief Justice Fred Vinson, a baseball player in college, tried out for the Cincinnati Reds.  After he failed to make the team, he decided to study law.