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Last Updated: Thursday, 29 September 2005, 15:55 GMT 16:55 UK
Analysis: Supreme power of US justices
Paul Reynolds
By Paul Reynolds
World Affairs correspondent, BBC News website

As John Roberts is confirmed by the US Senate as the new head of the Supreme Court, Paul Reynolds reflects on the unpredictability of judges, once they are ensconced on the nation's highest legal body.

Among the trivia I have collected over the years is a plain white sheet of cardboard with the words "H-1 Reserved (do not remove)" written on it.

Protests outside US Supreme Court, December 2000
In 2000, it fell to the Supreme Court to determine the poll result

It marked my seat in the US Supreme Court on 11 December 2000 when the nine justices heard oral arguments in a case listed simply as Bush v Gore. The case would determine the presidency of the United States for the next four years at least.

The arguments, of course, were about whether the election result in Florida could be subject to a recount.

The verbal combat lasted for just an hour and a half, a period of concentrated point-scoring between eight of the justices and the lawyers representing Vice-President Al Gore and Governor George W Bush.

At the end of it, I felt free to ignore the instruction on the card and take it with me, feeling privileged to have been in the inner sanctum of the US judicial and political system at such a time.

Next day, the court ruled from the Greek-style temple it occupies near Congress on Capitol Hill that the recount could not go ahead. Different methods of recounting (those hanging and pregnant chads etc), it said, would violate the Fourteenth Amendment to the Constitution, which guarantees equal treatment for all.

And there was no time, it further ruled, for a uniform method to be devised. So Governor Bush became President Bush.

Republicans rejoiced. Democrats complained that the court had taken a political stance, a reflection of its conservative majority.

Either way, it was a demonstration of the power of the Supreme Court as the final arbiter of US law and justice.

'Let him enforce'

In the British parliamentary system, it is parliament that has the final say.

In the United States, the court itself can strike down a law, a right it had to acquire for itself by practice early on as the provision is not actually in the constitution itself.

Judge David Souter
Souter was appointed to shore up conservatives - but joined centrists
It has only occasionally been ignored - and not in recent history.

It was back in 1831 that President Andrew Jackson refused to obey a ruling that declared the removal of the Cherokees from their homelands to be illegal. "Mr Justice Marshall has made his ruling. Now let him enforce," was his response.

Given their influence, the appointment of justices to the court is a major political event. And no wonder that the justices have to be protected. They serve for life.

All presidents tend to nominate their political or philosophical allies in order to leave a legal legacy.

It does not always work.

For a start the nominee might not get through the Senate, which has to give its approval.

President Nixon tried to appoint two Southern judges, Clemon Hainsworth and G Harold Carswell, as part of his Southern strategy to increase the influence of Republicans in the South. But the Democratic-controlled Senate rejected them.

Then, the nominee might not act quite as expected.

"He or she might go off the reservation," said Philip John Davies, Professor of American Studies at De Montfort University.

Mr Nixon did manage to appoint four justices (including Justice Rehnquist) but the court he wanted to turn into his own eventually turned on him during Watergate and ordered him to hand over the secret White House tapes.

In 1990, President George Bush senior appointed New Hampshire Judge David Souter to the US Supreme Court in the expectation that he would strengthen the conservatives.

Dwight Eisenhower
The worst damn fool mistake I ever made
President Eisenhower on his nomination of Earl Warren
Justice Souter in fact joined a centrist faction, which has ensured that the Rehnquist Supreme Court has not been predictable. There have been a number of 5-4 decisions and they sometimes go one way and sometimes the other.

In Bush v Gore, in which Mr Bush's son had such an interest, Justice Souter was one of the minority of four who wanted the court not to intervene.

A notable case of "going off the reservation" was that of Chief Justice Earl Warren, appointed by President Eisenhower in 1953.

"The worst damn fool mistake I ever made," Eisenhower is said to have lamented later.

Earl Warren was actually a highly political figure. He had run as Republican vice-presidential candidate with Thomas Dewey in 1948 and as governor of California had delivered the state to Eisenhower in the election of 1952.

As a reward, Eisenhower promised him the first vacancy on the Supreme Court. It happened to be that of chief justice and Warren held the president to his promise.

All about politics

Earl Warren presided over a liberal court which made a series of landmark civil rights rulings.

The most famous was Brown v Board of Education in 1954, brought by a girl named Linda Brown who had to walk a mile to a blacks-only school in Kansas while a whites-only school was much nearer.

Members of Congress have sometimes found it hard to address difficult issues and have found it easier to leave them to the court to resolve
Prof Philip John Davies, De Montfort University
The case overturned a Supreme Court ruling in 1896, which held that "separate but equal" facilities were legal under the Fourteenth Amendment.

Warren swept all that aside when he declared: "Separate educational facilities are inherently unequal."

The case showed how political the judgments of the Supreme Court can be. In one generation, separate can be equal. In another it is unequal. Yet the constitution is the same. It had little to do with law and a lot to do with politics.

In 1857, the court said that a slave, Dred Scott, had to be returned from a free to a slave state because blacks were not citizens. No such ruling would ever be made today.

In the 1973 abortion case, Roe v Wade, the right of a Texas woman wanting an abortion was found in her constitutional right to privacy. This ruling really just reflected current thinking in society, not anything that the 18th Century text had to say, since it said nothing on the subject.

According to Professor Davies, the Supreme Court is often used to rule on problems avoided by Congress.

"In the American system where power is divided, members of Congress have sometimes found it hard to address difficult issues and have found it easier to leave them to the court to resolve - segregation, abortion, capital punishment for example."

He added that it was once the practice to appoint political figures to the court. "They would have taken a law degree as kiddiwinks," he remarked, "but they were really politicians. Now they tend to be judges with good records. And they tend to be loyal to the law itself and not be swayed by the politics.

"That is why the president cannot always depend on them."


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