Like Josh Patashnik, I'm puzzled by Anna Quindlen's claim that the judiciary is the most powerful branch of the federal government. Patashnik notes the relatively narrow scope of the recent decisions Quindlen cites, which in terms of their impact are obviously dwarfed by, say, the Iraq War or Bush's series of budget-busting upper-class tax cuts, both areas in which the courts have virtually no influence. In addition, many of Qundlen's examples are hardly representative of the unilateral power of the courts. The decision to uphold Indiana's voter ID law was, in my judgment, a bad one -- but it also would have been beside the point had the legislature not passed the law in the first place. Similarly, Ledbetter was bad, but the Court has been able to establish a new status quo because 1) the president vetoed corrective legislation, 2) a Republican minority in the Senate the filibustered, and 3) the Equal Pay Act didn't allow for punitive damages in the first place, making the statute of limitations provisions of Title VII relevant. The court certainly matters, but in most cases its shaping of the policy generated by the other branches is marginal. And even where the progressive impact of the court is arguably the most important -- abortion rights -- such rights have substantial support among both the public and among elected officials, and indeed Roe could not have survived even in its current watered-down form if this wasn't the case.
An additional point is that -- as I think I've said before -- Quindlen's claim that "[h]istory tells us that virtually all presidents get blindsided by their court choices" is also not really true. Almost all alleged "surprises" were either selected for reasons other than ideology (Warren, Brennan, O'Connor, Souter) or were third choices reflecting the constraints of the Senate (Blackmun, Kennedy.) And even the extent to which Blackmun crossed Nixon has been overstated; there's very little reason to believe that Nixon cared about abortion when making Supreme Court appointments. On the stuff that Nixon actually cared about, even Blackmun was pretty reliable vote for his first decade. All four Nixon appointees joined the 5-4 decisions that effectively gutted Brown by permitting states to maintain schools that were both de facto segregated and unequal as long as this was done by through district boundaries and funding rather than direct pupil assignment, for example. And no Nixon appointee ruled that the death penalty was unconstitutional until it was again well-established. In general, voters are actually perfectly rational in assuming that a president they otherwise support will appoint judges with more congenial constitutional views and using presidential ideology as a proxy.
None of this is to say that the public wouldn't benefit from knowing more about the courts and what they do, but you can say that about almost any aspect of government. Regulatory decisions are also an extremely important part of modern government and will tend to be very different depending on who occupies the White House, but they attract if anything less public attention.
--Scott Lemieux
