The Believer | The Nation

Whom do you want to nominate Justices for the Supreme Court in the
next four years? No issue is more vital in the race between Democrat
Al Gore and Republican George W. Bush--repeat, no issue is more
important than the makeup of the next Supreme Court--and therefore
the future outlook for reproductive rights, civil rights, campaign
finance reform, environmental protection and perhaps much, much more.

No issue is more crucial, for two reasons. First, no matter what the
next President or Congress may do or think, among the three branches of
the federal government, the Supreme Court is often first among supposed
equals, wielding more authority than either of its counterparts through
its power to declare unconstitutional the actions of Presidents (such as
Harry Truman's seizure of the steel mills in 1952), as well as
enactments of Congress or the state legislatures (such as those
attempting to validate prayer in public schools).

It was the Supreme Court, of course, that held in Brown v. Board of
Education in 1954, one of its most historic decisions, that public
school segregation violated the Constitution. That decision opened not
just the schoolhouse door but the gate to the modern civil rights
movement, which in the past half-century has so nearly transformed the
nation.

It was the same Court, however--different Justices in different times,
but with the same powers--that in 1896 upheld a Louisiana "separate but
equal" law, ushering in the six long decades of racial segregation that
were not effectively ended until Brown (and not even then, in
some areas). Even earlier, in 1857, the Court's infamous Dred Scott
decision held that black people had no rights white people were
bound to respect and that Congress could not prohibit slavery in the
territories. The Civil War followed not long after.

So despite the enmity earned in the twentieth century by the Warren
Court in the fifties and sixties for its controversial decisions
(Brown, Miranda, Baker v. Carr), the Supreme Court
has not always been--and need not necessarily be in the future--a
bulwark of liberal attitudes. In the thirties, in fact, Franklin
Roosevelt undertook his ill-fated "court-packing" scheme because of a
series of Court rulings--such as one finding unconstitutional his
National Industrial Recovery Act--that he thought were crippling his New
Deal programs. In perhaps his worst political defeat, FDR failed to
"pack" the Court, but the threat may have achieved his objective in
several subsequent decisions--upholding, for example, federal power to
prohibit shipment in interstate commerce of goods manufactured in
violation of wage-and-hour laws. This was a startling about-face from an
earlier ruling.

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In the summer of 1941, Adolf Hitler's apparently invincible Wehrmacht was grinding hundreds of miles into the Soviet Union, spreading mayhem all the way.