The Best Of The Supremes

Ruth Bader Ginsburg has not shared her cookie recipe with the readers of Good Housekeeping. Anthony Kennedy has yet to appear on the cover of People magazine. David Souter has not gone late night to trade laughs with Letterman.

Maybe that is why, in this infotainment age, Americans seem to know so little about what is arguably the most powerful branch of government. Maybe it is why the most important issue of this presidential race is still in half shadow, second fiddle to prescription-drug plans and the future of Social Security.

Actually, the Supreme Court is not a single issue in this campaign. It is every issue. Its nine members have passed judgment on affirmative action, gun control, abortion, tobacco marketing, environmental protection, school prayer and capital punishment. Its proudest history is a history of daring the unpopular to benefit the unrepresented. No politician demanded the integration of the nation's schools; the court did, in Brown v. Board of Education. No legislative body ditched Connecticut's antiquated laws banning the sale of contraceptives; the court did, in the Griswold decision. The justices of the Supreme Court comprise the least public part of the tripartite process, yet they may touch every aspect of the American political landscape. The president may propose; the Congress may pass. But if the court says the result does not meet the constitutional smell test, it matters not.

It is only indirectly that Americans get to choose justices, by choosing presidents, and in this campaign the choice is both clear and critical. George W. Bush has expressed open admiration for the two current members of the court who have been, in different ways, among the most divisive of the century. Clarence Thomas was appointed by the governor's father with the pronouncement that he was the "best qualified" jurist in the nation. This was preposterous on its face. His judicial resume was mediocre; he was chosen because he was conservative and black, an affirmative-action hire by an administration that eschewed affirmative action. He seemed an undistinguished choice even before a former associate named Anita Hill told of inappropriate and bizarre sexually charged encounters with Thomas, turning the nomination into a polarizing referendum on sex and race.

Antonin Scalia, the other jurist Bush admires, was considered a man of substantial judicial accomplishment when he was nominated, and his confirmation, by contrast, was not in the least rancorous. Would that we could say the same of his tenure on the high court. Scalia has used his rhetorical flair and sharp mind, not to illuminate and persuade but to attack and ridicule. He has referred to his colleagues and their opinions with a rich string of pejoratives: "irrational," "smug," "preposterous," "self-righteous," a "lawyer-trained elite." He churns out embittered dissents that reflect a dedication to a conservative result even at the cost of intellectual logic. Blacks should not be given contract set-asides because competition should be open to all; women should not be admitted to all-male institutions because membership should be open only to some. In his inconsistency he is consistent; Scalia values ideology over precedent, and Thomas concurs, while the rest of their colleagues go about the work of making law. Far from being the right wing of the court, these two have become an outbuilding.

No president can truly predict how he will fill vacancies on the court, or what those appointments will mean in the long run. Eisenhower felt forever sideswiped by his appointment of William Brennan, who became the most liberal of justices; Nixon nominated Harry Blackmun, who wrote Roe v. Wade. Justice O'Connor was nicknamed the Iron Lady, and Reagan thought she would be a steely conservative; instead, along with Justice Kennedy, she has become a sometimes centrist fulcrum of the court. This is not surprising. Historically good justices have been people of intellectual acumen combined with a deliberative judicial temperament, who rise to the great occasion of their appointment and who grow during their tenure on the bench. By contrast Scalia and Thomas appear to have ossified, trapped in the amber, and the animus, of unrelenting ideology.

Yet these two are what the Republican nominee considers paragons. (He brushes off questions about David Souter, his father's most collegial and productive nominee, who has disappointed by deciding cases on their merits.) Bush says he seeks justices who will "strictly interpret the Constitution," who unwaveringly reflect the intent of the Framers of the document. Even assuming that the Framers of the Constitution agreed on all matters, which history tells us is not true, how in the world can 21st-century jurisprudence take their temperature on issues they could never have imagined, issues ranging from e-commerce to the voting rights of black Americans? And why would the Framers have produced such an expansive document if they wanted it to be narrowly construed, construed in such a way that Brown never would have opened schoolhouse doors or Griswold closed the door of the bedroom?

In his enthusiasms George W. Bush has given the lie to his insistence that he has no litmus test for Supreme Court justices. It does not matter that Scalia tears at the deliberative consensus-building process of the court; it matters only that he is hostile to affirmative action and the rights of the accused. It does not matter that Thomas strained the bounds of the confirmation process, then lapsed into an intellectual coma on the bench (and was the only justice so clueless about the exceptional dignity of his new position that he did, in fact, pose for the cover of People); it matters only that he supports school prayer and the death penalty. If more of their ilk were to be appointed, a variety of rights would certainly be rolled back. But, more important, the court would have lost the pride of place that has kept our Constitution vibrant and our freedoms far-reaching. We already have two branches of government hopelessly balkanized by political ideology. There is no need to create a third.