Last Resort

...Probing questions must be asked and responsive answers must be given," Tribe instructs, shortly after discussing the funny but unfortunate case of Senator William Langer of North Dakota...

...Consider the 1824 case of Gibbons v. Og-den, which in its construction of the Constitution's commerce clause set the nation on the way to a cohesive economy unhampered by states' parochial economic competition...

...And while we hold our breath to see how long-lived our Court will be, Tribe's book can supply to those interested a workmanlike limning of the power of the country's forum of last resort...

...From affirming schoolchildren's right to refuse to salute the flag to allowing Texas to imprison a man for life for stealing $230, Tribe's "nine important chairs," right or wrong, draw the lines within which we must live...

...In one chapter, for instance, he deals solely with the important Court cases decided by five-to-four votes, a survey that takes the reader from the 1895 decision upholding the constitutionality of the income tax to the Bakke reverse-discrimination ruling several years ago...

...Given the depressing prospect of a Reagan Court nominee who holds these havoc-raising views, we can only hope the Senate listens to Tribe and does its constitutional duty during confirmation hearings...

...Meese, who will no doubt greatly influence Reagan's Court selections, recently urged the Court to adopt a "jurisprudence of original intention" and to abandon the theory of incorporation, by which the Bill of Rights is applied to the states as well as the Federal Government...

...Or peruse the Chadha opinion of 1983, in which the Supreme Court declared the legislative veto unconstitutional—and in so doing rendered enormously difficult Congressional oversight of the Executive branch...

...And those lines are almost always indelible...

...And so the Senate is the only check on the proven powers of Presidents to remake the Court in their political image...

...This means no warrant requirement for wiretaps or any other constitutional cognizance for post-colonial developments...

...The point—that even one justice can make a major constitutional difference—is clear without such exhaustive argument...

...many of us are familiar with Bakke, Miranda, Roe v. Wade, Brown v. Board of Education, and other landmark Supreme Court cases...

...Francis J. Flaherty (Francis J. Flaherty, a member of The Progressive's Editorial Advisory Board, is a legal journalist based in New York City...

...The focus on power also leads Tribe to give short shrift to Court limitations...

...In this serviceable but slightly overdone book, Harvard law professor Laurence Tribe claims that "we go about our daily lives unaware of the pervasive influence that the Supreme Court's decisions have on all of us...

...At times, Tribe parses this theme of power a bit too finely...

...To the extent citizens know of these and other decisions, and so know of the Court's realized and potential power, Tribe's thesis belabors the obvious...

...Remove the legal gloss, and progressives will see how alarming these notions are...

...Many judicial watersheds are less famous than Bakke and Brown...

...There are some surprises, admits Tribe, but they are exceptions that prove the rule...

...In dispelling what he calls "the myth of the surprised President," Tribe ticks off all the Presidents whose appointees turned out to be precisely the liberal or conservative jurists those Presidents wanted...

...The reason seems to be Ronald Reagan, who has three years left in the Oval Office at a time when a majority of the Justices are beyond age seventy-six...

...No court in this country is about to rule that private property violates the Constitution, no matter what the legal merits of that argument...

...With nine life-tenured, unelected members, the Court knows it is an anomaly in a democracy, and so if it strays too far from the politically plausible it may find that its courtroom has collapsed...

...Reagan thus has a good shot at more appointments as "the graying of the Court" continues, and Tribe leaves us with little doubt that, historically, Presidents usually get what they want from their nominees...

...But he elucidates, too...

...In his five appointments, Abraham Lincoln looked forjudges committed to preservation of the Union and support for his war efforts, and that is what his nominees delivered...

...Given the Court's power, filling a vacancy on it is serious business, both for the President who nominates and for the Senate that confirms, Tribe argues...

...And dispensing with the incorporation doctrine would free states from obeying such commands as the free-speech clause of the First Amendment...

...The Senate is no rubber stamp, Tribe argues, labeling this view "the myth of the spineless Senate...

...The process of appointing Justices is the second strand of Tribe's book...

...For example, many scholars posit an institutional reluctance that prevents the Court from fully exercising its paper authority, a reluctance stemming from the fragile underpinnings of its power...

...Although history teaches that Presidents are sometimes surprised by the Supreme Court," Tribe concludes, in general "the surprise is almost always of their own making...

...Noting that "the next Justice appointed will in all probability still be sitting on the Supreme Court in the year 2001," Tribe importunes the Senate to scrutinize nominees' legal literacy and judicial philosophy...

...The "original intention" idea means that judges should protect only those rights specifically contemplated by the framers of the Constitution...

...No other nomination that a President makes receives more rigorous scrutiny...

...As the final arbiter of the vague and open-ended phrases of the Constitution, the Supreme Court wields a wand that can transform our legal landscape with one stroke and without any imprimatur from the electorate...

...Readers may rightly take umbrage at this claim...

...Only four times in American history have Congress and the states passed constitutional amendments reversing a Supreme Court ruling...

...Tribe spends a chapter proving that the Senate generally has taken seriously its duty to give "advice and consent" to the President on his nominees...

...George Washington and John Adams, strong advocates of Federal supremacy over the states, appointed a Supreme Court that gave constitutional legitimacy to that view...

...While this urging comes too late to help Walter Mondale, who vainly tried to make the appointment power an issue in the 1984 Presidential campaign, it is a well-timed rebuff to the recent pronouncements of Attorney General Edwin Meese III...

...For six years in the 1950s, Langer opposed all Supreme Court nominees out of pique at the fact that no North Dakotan had (or has) ever sat on the highest bench in the land...

...Thus, "the Senate must serve as a fierce and tenacious guardian over access to these nine important chairs," Tribe writes...

...Or look at Baker v. Carr, a case that helped establish the fundamental democratic rule of "one person, one vote...

...In fact, he calculates, "almost one out of every five nominees to the Court has failed to gain the Senate's consent...

...Why lecture a group of mostly attentive Senators...