The 35-year career of justice John Paul Stevens, who announced last week that he was stepping down, perfectly spanned an era when the U.S. Supreme Court was, well, boring. In ways that were reassuring to some, disappointing to others, the Supreme Court has not pushed the country in one particular direction or another for the past three and a half decades. It is unlikely that President Obama's appointment to replace the nearly 90-year-old Stevens will make much of a difference. The Supreme Court has become a mirror, not a leader, in the nation's struggle to define and understand itself.
In 1901 Mr. Dooley, the fictional Irish bartender of satirist and newspaper columnist Finley Peter Dunne, memorably declared, "Th' supreme coort follows th'illiction returns." But for much of the rest of the 20th century, the high court did not follow the election returns. At first, it was a force of reaction. Franklin Roosevelt despaired about "the nine old men" who were striking down his New Deal legislation as an infringement on property rights, and threatened to "pack" the court with liberals by expanding it to up to 15 justices. He wisely backed down and, through death and retirement, eventually got the justices he wanted.
Yet Supreme Court justices sometimes surprise the presidents who appoint them. Two Eisenhower appointees, Chief Justice Earl Warren and William Brennan, turned out to be visionary liberals. The Warren court desegregated the schools, protected free speech, safeguarded the rights of the criminally accused, and generally got out ahead of the voting public in the 1950s and '60s. It moved so far that IMPEACH EARL WARREN bumper stickers became familiar in the more conservative parts of the country. It is fair to say that by giving real meaning to constitutional rights, the Warren court moved the country to the left.
As the conservative reaction to the liberal '60s set in, it was widely predicted that the Supreme Court would turn to the right. But a funny thing happened. The court became a force for relative moderation. From the Reagan through the George W. Bush eras, the nation as a whole moved at least slightly right of center, judging by polls and election results. But the Supreme Court stayed somewhat left of center—essentially continuing on the path set by the liberal establishment of the 1960s. The court slightly trimmed back but did not abolish a woman's right to an abortion. It rejected outright racial quotas but preserved affirmative action that, as a practical matter, permitted the use of racial preferences in hiring and school admissions. It gave the police a little more authority to search suspects but upheld the once controversial requirement that suspects be read their rights before being charged. It continued to outlaw school prayer. It protected women's rights in most cases and created constitutional protection for homosexuals. In each case, the court was at least arguably to the left of public opinion, though in accord with most mainstream newspaper editorialists and name-school legal scholars.
What happened? Republican presidents appointed 12 of the last 15 justices, starting with Warren Burger, the Nixon appointee who succeeded Earl Warren in 1969. But of the 12, only five have turned out to be solid conservatives: former chief justice William Rehnquist, Antonin Scalia, Clarence Thomas, Samuel Alito, and the current chief justice, John Roberts. In other cases, presidents were less worried about ideology than getting their appointments confirmed, so they went for safe choices. Justice Stevens, tapped by Gerald Ford, was a maverick centrist who at first took conservative positions to reinstate the death penalty and strike down racial preferences; it was over time that he became a liberal. Burned by a fierce confirmation fight that rejected Robert Bork, President Reagan picked Anthony Kennedy, a middle-of-the-roader who has played the role of balancer and swing vote. A trio of justices who seemed like reasonable bets to stay to the right—Harry Blackmun, Lewis Powell, and Sandra Day O'Connor—drifted to the left. Even Chief Justice Burger, who was supposed to lead the rightward march in the Nixon administration, turned out to be moderate on social issues—joining the 1973 abortion decision and writing a major opinion in 1971 upholding forced busing to desegregate schools.
Obama is likely to face the same political realities as his Republican predecessors. He might be tempted to name a liberal to the court, but to do so would invite a knock-down, drag-out struggle in the U.S. Senate. With Democrats already fearing the midterm elections, Obama—rarely the wild-eyed radical of talk-show hosts' imaginations—is likely to opt for a justice who does not come with a lot of ideological baggage. On the White House shortlist are three moderates: Solicitor General Elena Kagan (some regard her as a stealth liberal), federal appeals court Judge Merrick Garland, and Homeland Security Secretary Janet Napolitano. A fourth name on the list, federal appeals court Judge Diane Wood, is a bit more predictably liberal—but no further to the left than the outgoing Justice Stevens.
All this is not to say that the Supreme Court will stay out of the headlines or never deviate too far from public opinion. On occasion, the court has followed the election returns a little too closely. In 2000 many constitutional scholars were disturbed by the court's intellectual disingenuousness in Bush v. Gore, awarding the presidential election to George W. Bush. The court's five-justice majority—all Republican appointees—used constitutional interpretations normally argued by liberals to achieve an outcome favored by conservatives. Then last fall the court angered many voters on the left by ruling that corporations could spend freely on campaign ads. This led to the uncomfortable spectacle of President Obama upbraiding the justices in his State of the Union address—as a camera caught Justice Alito shaking his head and mouthing the words, "That's not true." It may be duller when the Supreme Court remains noncontroversial. But at a time when government officials and their institutions seem to be under attack, maybe that's not such a bad thing.