Magazine article The American Prospect

The Court Packs Itself

Magazine article The American Prospect

The Court Packs Itself

Article excerpt

In Justice John Paul Stevens's despairing words, Bush v. Gore has shaken "the nation's confidence in the judge as an impartial guardian of the rule of law." Coming as it does from a justice known for his sobriety, this judgment should give all of us pause--and I mean Republicans no less than Democrats.

We are not dealing with the normal disagreement on principle that attends every important Supreme Court decision. Justice Stevens is saying that the majority's decision to halt the Florida recount is a blatantly partisan act, without any legal basis whatsoever. This harsh charge will be taken up in the nation's law reviews; perhaps someone will even produce an intellectually serious defense of the Court's decision. But at the moment, the silence of leading conservative academics is deafening.

After a careful study of the Court's opinion, I have reluctantly concluded that Stevens is right. I say reluctantly because this view goes against the grain of my entire academic career, which has been one long struggle against the slogan that law is just politics. Curiously, the scholarly debate has recently been moving in my direction: Critical legal studies is in terminal decline, and its would-be successors are intellectually feeble. But I fear that Bush v. Gore will provoke another great renaissance of legal nihilism in our nation's law schools, a cynicism that will slowly erode general confidence in the system. Which leads to my question: If the Court has betrayed the nation's trust in the rule of law, how should the nation respond?

This is not the first time in history that the Supreme Court has made a decision that called its fundamental legitimacy into question. But on past occasions, the normal operation of the system provided a remedy. As the wheel of mortality turned and justices were replaced, the Court regained credibility as an independently elected president and Senate appointed new members. But this time, the president has not been independently elected. He is in the White House as a result of an unprincipled judicial decision that brought the electoral contest to a premature end. If such a president is allowed to fill the Court, he will be acting as an agent of the narrow right-wing majority that secured his victory in the first place.

In our democracy, there is one basic check on a runaway Court: presidential elections. And a majority of the justices have conspired to eliminate this check. The Supreme Court cannot be permitted to arrange for its own succession. To allow this president to serve as the Court's agent is a fundamental violation of the separation of powers. It is one thing for unelected judges to exercise the sovereign power of judicial review; it's quite another for them to insulate themselves yet further from popular control. When sitting justices retire or die, the Senate should refuse to confirm any nominations offered up by President Bush. …

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