Buried in David Frum's endorsement of 9/11 Giuliani is the kind of claim you hear sometimes:
Since World War II, ten men have received the Republican nomination for vice president. Three of those men continued on to win the presidential nomination for themselves, and two actually became president. Meanwhile, a fourth nominee, Thomas Dewey's running mate Earl Warren, rose to arguably even greater power as chief justice of the U.S. Supreme Court.Can Frum really believe that the Chief Justice of the Supreme Court holds more power than the President of the United States? Leaving aside that the Chief doesn't have the power to affect much of anything without at least four allies -- as President Bush and Chief Justice Roberts were reminded again last week -- it should be obvious that the Supreme Court has far less power than the presidency. Its effect on most aspects of foreign policy is negligible, and controlling the bureaucracy gives the president far more policy influence than even a relatively active court. For the most part, the policy changes created by Supreme Court decisions are marginal.
It should be noted as well that in its civil rights opinions, the Warren Court was working with the national governing coalition of the time (the Truman and Eisenhower administrations both supported desegregation in amicus briefs, for example.) Moreover, in areas where they were unpopular, the Court's civil rights, criminal procedure, and school prayer decisions faced very serious enforcement and implementation problems. Without some support from other actors, judicial pronouncements mean little. (To borrow Mark Graber's line about Marbury, it established little except for the power of the Supreme Court to issue a declarative sentence about its powers. That decision came out the way it did, of course, because Marshall didn't want to issue a writ he knew Jefferson and Madison would ignore.)
The Warren Court played an important role in some areas, but it should also be clear that not only was it a partner of the dominant governing coalition of the time, it was a junior partner. And certainly, the president is vastly more powerful than the Chief Justice even if you adjust for the greater tenure of the latter.
--Scott Lemieux
