Destiny With Appointments

It was high drama - the kind that the Supreme Court has brought about itself.

Chief Justice William H. Rehnquist gave this opening line in court last week as he read the majority decision upholding the court's 1966 Miranda ruling: "You have the right to remain silent."

He could have easily been talking to other branches of government. The court had just overturned an act of Congress.

The Rehnquist court, now 14 years running, has asserted its supremacy over presidents, Congress, federal agencies, state legislatures, and even referendums. In the past five years, it has invalidated 24 acts of Congress. (See story on page 1.)

And just this past term, the court chose to be a legal policeman on such issues as prayer at school football games, gays in the Boy Scouts, aid to parochial schools, sex on cable TV, the regulation of tobacco, and - once again - abortion. In taking on hot-button issues, the court itself has become divided. A quarter of its decisions hung on narrow 5 to 4 votes.

No wonder during this dull election campaign that Americans wake up when asked if their choice for president depends on how a candidate might select the next few Supreme Court judges.

The court's aggressive rulings have made it more a check than a balance on other branches. Its judicial activism - on the left in the 1960s, and then on the right under Rehnquist - has made it a constitutional umpire in the culture wars.

Now, instead of judges being chosen for their fairness, intelligence, and other qualities, they are tested on their ideology, such as their understanding of when life begins or how they square the death penalty with religion.

The nation's first chief justice, John Marshall, established the tradition of judicial review in Marbury v. Madison. But these days the court reads deep meaning into single words of the Constitution to settle almost any social issue. The practice has politicized the courts while leaving legislatures passing the buck on questions that the framers of the Constitution expected them to decide.

Yes, it's important to ask the presidential candidates what kind of justices they will pick to sway the court left or right - perhaps for a generation. But with Democrats and the Republicans further and further apart on social issues, let's choose a president who will find judges ready to throw issues back to elected representatives.

It's a fine line between enforcing law and making it. We need a high court that knows the difference.

(c) Copyright 2000. The Christian Science Publishing Society