Berkeley Law

After six years in mothballs, the Supreme Court appointments process likely will be returning to active duty in relatively short order. This will not be an entirely welcome event, as scholars have failed to agree on how to improve the Supreme Court appointments process. This essay reviews two recent books that provide some order to our thinking about the appointments process, Terri Jennings Peretti's In Defense of A Political Court, and David Alistair Yalof's In Pursuit of Justices. While much of the legal literature, for example, has focused on the standards that the Senate ought to apply in confirming Justices, Yalof examines the more decisive process of presidential selection of Supreme Court nominees. Peretti, whose work aims at a wider-ranging discussion of the purposes of judicial review and the roots of the Court's legitimacy, approaches the question by first asking what ought to be the proper role of the Supreme Court in the American political system.

This Essay maintains that neither the indeterminacy of constitutional decisionmaking, as Peretti would have it, nor the expansion of judicial review, as many of our leading scholars believe, provides the sole explanation for the politicization of the confirmation process. Rather, it observes that the emergence of judicial claims to supremacy in constitutional interpretation has much to do with the growing political attention to the ideology of Court nominees. For all of the concern about a conservative judicial counter-revolution, on the issue of judicial supremacy the Burger and Rehnquist Courts have fully embraced and even expanded upon the Warren Court's first steps in Cooper v. Aaron. Judicial supremacy changes the constitutional structure in a way that leads to the more political appointments process we have today. It removes legitimate methods using the coordinate political branches or the states to challenge the transfer of issues from the political to the legal sphere. By constitutionalizing more areas of life and by pursuing the notion of judicial supremacy, the Court itself has shunted normal political activity from the world of policy into the world of Court appointments.