The Supreme Court lag

As Chris pointed out in his first post about “The Nine” by Jeffrey Toobin, the battle over the Supreme Court has been framed by a for the last three decades by an ideological debate between those who believe the framer’s intentions in drafting the Constitution should be strictly interpreted and those who believe the Constitution is a living document meant to adapt to changing times. In specific response to what many conservatives believed was the overreaching of the Warren and Burger courts, they have made efforts to get new justices who believe precedents set then should be overturned. Decisions in those years established the right to an attorney at trial, the right to privacy, created the Miranda warning, overturned racial segregation, and, in a controversy that still rages today, made abortion legal in Roe v. Wade.

The precedents established are not easily undone. As Toobin points out, even Chief Justice William Rehnquist did not overturn the Miranda ruling when given the opportunity because people had come to rely on it. The litany of rights read by police officers before a suspect is interrogated is so pervasive its on crime and justice television shows, and many citizens can recite it verbatim. A respect for stare decisis also explains why David Souter was so different than predicted to the president who nominated him, George H. W. Bush.

Now, though, with Chief Justice John Roberts, Justice Samuel Alito and Justice Clarence Thomas solidly in the majority, and the moderate conservative Justice Anthony Kennedy taking the place as the court’s swing vote, the court has come full circle. Conservatives finally have the court they would wish for, a court that seems willing to overturn precedent from those years. But it comes as the conservative revolution in politics, which reached its height with the two terms of President Ronald Reagan, comes to a close. President Barack Obama often is compared to Reagan; he’s the same style of communicator and he seems to have ushered in a close to the Reagan revolution with a new kind of coalition.

It’s unlikely, though, that Obama will have a chance to change the court. Those most likely to leave are its most liberal members, and the youngest are those nominated by President George W. Bush. So its Obamaism that has to continue if Obama wants to leave a mark on jurisprudence, just as it was Nixon’s and Reagan’s predecessors who made the court more conservative.

What does this mean for the country? It may be easy to argue that the Warren and Burger courts brought change before many people were ready, particularly in Brown v. Board of Education and Roe v. Wade. Those decisions ripped parts of the country in two. Now we have a court that may be more conservative than the populace, that may be more reluctant for changes like gay marriage than the voting public. But that’s a good or bad thing depends on your view of the role of the judiciary.

Monica Potts