Supremes tackle culture wars.

• Author: Bresler, Robert J.
• Position: Supreme Court - State of the Nation

DESPITE THE FREQUENT excitement over Supreme Court decisions, Alexander Hamilton had a profound insight when he called the courts, "the least dangerous branch" of government. In the most important moments, the Supreme Court has learned the limits of its power. The Court's efforts to resolve deep political differences either have resulted in failure, legislative retaliation, or the Court's retreat.

The most memorable failure came in the Dred Scot v. Sandford (1857) decision. In an act of egregious judicial overreach, Chief Justice Roger Taney declared that Congress had no authority to abolish slavery in the Territories. He asserted that such action denied citizens of their property (African slaves) without due process of law. Taney thought the Court had taken the issue out of the hands of Congress and, in the process, resolved the controversy that had divided the country and split the old Whig Party. He and his colleagues were deluded. The effect was the opposite. Dred Scot infuriated the anti-slavery North, energized the new Republican Party, and set the stage for the election of Abraham Lincoln, which engendered Southern succession and Civil War. After four years of unspeakable bloodshed, the issue was resolved by Constitutional Amendments. Dred Scot became known as the darkest moment in the history of the Court.

In 1935-36, the Supreme Court declared much of Pres. Franklin Roosevelt's New Deal legislation unconstitutional--Agricultural Adjustment Act, Federal Farm Bankruptcy Act, Railroad Act, Coal Mining Act, and National Industrial Recovery Act. Forgetting the lessons of Dred Scot, the Court had plunged itself into the middle of a political maelstrom. In response, Roosevelt proposed to "pack the Court" and came close to robbing the Court of its independence and making it an appendage of the Executive branch. However, Congress backed away from Roosevelt's scheme. Soon, the Court began to change direction, no longer challenging Roosevelt's reforms. It was a close call for the Court's independence. However, it left the future of most New Deal legislation with the Congress, not the Court.

On the other hand, defenders of judicial activism cite Brown v. Board of Education (1954), the famous school desegregation case, as a successful example. In many regards it was a shining moment for the Court. However, the Court played it cautiously. The language of Brown was bold, but the enforcement decision, Brown II (1955), was not. It required the...