Sonia Sotomayor's confirmation hearings won't happen for more than a month, but it's easy to predict how they will go.
In a series of preening, long-winded questions, the members of the Senate Judiciary Committee will attempt to divine Sotomayor's position on a variety of controversial topics - from affirmative action to abortion to presidential power. In a series of polite, evasive answers, the nominee will feign a studious neutrality on almost every issue that could come before her during what's likely to be decades as one of the most powerful women in the world.
Nobody will explicitly acknowledge the deeper stakes. Sotomayor will be joining a high court that's gradually become a kind of extra legislative body - a nine-person super-Senate graced with the power of the veto, where liberals and conservatives alike turn when they're confounded in the Congress.
Complaints about the Supreme Court's power are almost as old as the Constitution, but they have more merit now than ever. According to calculations by the Harvard law professor Jed Shugerman, the court has gone from overturning roughly one state law every two years in the pre-Civil War era, to roughly four a year in the later 1800s, to over 10 a year in the last half-century. So too with federal law: Prior to 1954, the Court had struck down just 77 federal statutes in a century-and-a-half of jurisprudence; in the 50-odd years since, it's overturned more than 80. Under Chief Justice William H. Rehnquist, the Court invalidated federal statutes at an unprecedented rate - and by the barest of majorities, in many cases. In one eight-year period, the University of Michigan's Evan Caminker has noted, the court invalidated 16 congressional statutes by a 5-4 vote, something that had happened just 25 times in the previous two centuries.
The public doesn't seem to mind this increasing assertiveness: The Supreme Court regularly shows up in polls as the most respected branch of government. But settling so many vexing controversies with 5-4 votes - effectively making Anthony Kennedy the nation's philosopher king - is an awfully poor way to run a republic.
The right tends to blame the left for the Supreme Court's expanded ambit, and not unjustly. The modern Court's most enduringly controversial power grabs - with Roe v. Wade leading the way - were usually the work of liberal justices, and even the more modest liberal theories of jurisprudence tend to depict the justices as soldiers in the progressive cause, constrained primarily by what the political climate allows them to get away with.
But in practice, the main divide between liberal and conservative judges tends to be over the responsibilities of the federal government, not judicial activism per se. During the last decade of the Rehnquist Court, for instance, the conservative Clarence Thomas and the arch-liberal John Paul Stevens were almost equally willing to vote to strike down legislation. It's just that Thomas was much more likely to rule federal actions unconstitutional, while Stevens was more likely to vote to overturn state laws.
So right-wingers, too, have grown accustomed to turning to the Court when their legislators let them down. On matters ranging from affirmative action to campaign-finance reform to gun control to property rights, Bush-era conservatives petitioned the Supreme Court - sometimes successfully, sometimes not - to declare unconstitutional policies that could have been changed legislatively, had the Republican majority been able to muster the political capital to do it.
In the current term, conservatives are asking the Court to revise away outdated provisions of Voting Rights Act - a reasonable proposal, but something a Republican-controlled Congress could have done in 2006, instead of voting 98-0 in the Senate and 390-33 in the House to reauthorize the act for another quarter-century.
There are bipartisan ways that the Court could be reined in, and the legislative branch reinvigorated. Shugerman, Caminker and others have proposed a supermajority rule, for instance, requiring a 6-3 vote to overturn federal legislation. To get conservatives on board, the rule would have to be extended to state legislation as well. This isn't as crazy as it sounds - versions of the supermajority idea have been batted around by left and right alike since Reconstruction, and merely proposing it might spur the court toward greater consensus, and perhaps greater modesty as well.
Absent such constraints, the best reform would be term limits for the justices, instead of lifetime tenure. Give them 12 years, rotated on a regular schedule, and then send them on their way.
Such limits wouldn't reduce the Supreme Court's power directly, but it would help us see the court for what it has become - a deeply political institution, as fallible as any other, and answerable, when all is said and done, to us.
Ross Douthat is a columnist for The New York Times. Reach him c/o The New York Times, Editorial Department, 620 8th Ave., New York, 10018.
© 2009 New York Times News Service