Appointees Who Really Govern America

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In the wake of the Supreme Court’s infamous Dred Scott ruling, which effectively made slavery legal in the territories, Lincoln declared in his first Inaugural Address that “if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made” then “the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.”

Lincoln is hardly alone, of course, in questioning the activist role that the Supreme Court has assumed intermittently — some would say, frequently — in American history. In fact, both liberals and conservatives have taken turns denouncing the court for overstepping its bounds — depending on which political direction a given set of justices has pushed the court.

In his provocative and timely new book, the Pulitzer Prize-winning historian James MacGregor Burns observes that during one 18-month period in Franklin D. Roosevelt’s presidency, the court (which was then a bastion of the old economic order) struck down more than a dozen federal and state laws, threatening the implementation of the New Deal and causing Roosevelt to lament in June 1936 that conservatives had created a “ ‘no-man’s land’ where no government — state or federal — can function.”

In contrast, in the 1960s, when the Warren Court put itself in the vanguard of change through its championing of equality and civil rights and in the process nullified dozens of federal, state and local statutes, some conservatives angrily argued that judicial review had no basis in the Constitution. (Today, with President Obama’s Supreme Court nominee Sonia Sotomayor awaiting confirmation hearings, conservatives are again the ones issuing warnings about judicial activism.)

It is Mr. Burns’s contention in “Packing the Court” that “as the ultimate and unappealable arbiters of the Constitution, the justices of the Supreme Court have become far more than the referees in constitutional disputes that the framers intended. They have gone beyond interpreting the rules — they have come to create them.”

http://www.nytimes.com/2009/07/07/books/07kaku.html?th&emc=th