The power of judicial review
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Some presidents have been disappointed in ``their'' justices. Dwight Eisenhower, for example, later regretted his appointment of Earl Warren as chief justice because of the school desegregation case. Theodore Roosevelt called Oliver Wendell Holmes a ``bitter disappointment.'' Harry Truman was irritated with Tom Clark, who voted against President's seizure of the US steel mills. Richard Nixon did not expect Harry Blackmun to become one of the most moderate of his appointees.
If history is any guide, the court under new Chief Justice William Rehnquist may also prove to be less conservative than President Reagan hopes and many Americans fear.
Yet in the context of separation of powers, the Supreme Court over two centuries has overwhelmingly supported the expanding power of the presidency, especially in wartime or in the conduct of foreign policy. In 1863 the court ruled that Lincoln could wage war with the South without congressional declaration. In 1936, in US v. Curtiss-Wright, it affirmed the broad foreign-policy powers of the president independent of any act of Congress. In Korematsu v. United States, involving the internment of Japanese-American citizens in World War II, it gave the president national-security powers even in the domestic arena (a decision subsequently overruled). Upholding presidential power
Under Franklin Roosevelt the Charles Evans Hughes court, despite FDR's aborted ``court packing'' plan, ultimately began to uphold New Deal measures. And in the Reagan era it has legitimized the powers of the president by overruling the legislative veto.
Ironically, says presidential analyst Thomas E. Cronin, the court also expanded presidential power in the case of United States v. Richard Nixon. While it limited Mr. Nixon's claims of executive privilege and ordered him to give up the tapes required in a criminal procedure, it upheld for the first time the constitutionality of executive privilege.
``The impression should by now be well established that the Supreme Court generally favors the American president,'' writes Mr. Cronin, a scholar at Colorado College.
If the justices themselves have a major concern, it is probably their heavy workload. In the 1953 term the court received about 1,300 cases and wrote about 100 opinions. Now it receives some 5,000 cases a year and selects and issues full written opinions on roughly 150 to 160. There is more review of state cases than in earlier years.
Issues today, moreover, are more complicated, requiring especially careful treatment and resulting in a more fractious court. Judges need to know more about economics and other technical issues.
``Just selecting and reviewing [cases] takes up enormous time,'' says Burger. ``The Supreme Court is doing more work than it should .... The boat's overcrowded.''
For all the problems of overload, complexity of issues, and controversy over its role, the judicial branch remains a robust guardian of American representative democracy, ensuring that power remains subservient to the cause of liberty.
Lloyd N. Cutler, a former counsel to President Carter, writes of the judiciary:
``It has the greatest respect among the propertied and the underprivileged classes. One, because of all the institutions it has worked the best and, two, because ... it has upheld the rights of minorities. The court is now looked on as the defender of everyone's rights.'' Tomorrow: The states bounce back Further reading: ``The Supreme Court and Constitutional Democracy,'' by John Agresto: Cornell University Press (1984) ``Government by Judiciary,'' by Raoul Berger: Harvard University Press (1977). ``Storm Center,'' by David M. O'Brien: W.W. Norton and Company (1986). ``God Save This Honorable Court,'' by Laurence H. Tribe: Random House (1985).
