17 Harv. J. L. & Pub. Pol'y 131 (1994)
Judiciary: Conservatism's Lost Branch, The

handle is hein.journals/hjlpp17 and id is 153 raw text is: THE JUDICIARY: CONSERVATISM'S
LOST BRANCH
WILLIAM KRISTOL*
The Supreme Court is a relatively weak political institution
with a structural bias toward liberal causes. Indeed, it appears to
have been fairly weak throughout most of our history. For about
a twenty-year period, from Brown to Roe v. Wade,2 one could ar-
gue that the Court was reasonably powerful-although even
then, it largely gained its power as part of a much broader move-
ment. The Court played a useful role in advancing the liberal
agenda, breaking new ground in certain areas,' and serving as a
backstop to the other branches when particularly contentious is-
sues arose.4 With the possible exception of those two decades,
however, the Supreme Court has not made much of a difference
in American political life, particularly for conservatives. Thus,
conservatives should direct their energies toward political, rather
than judicial, change. At most, conservatives can prevent the judi-
ciary from remaining a liberal bastion after the forces of liber-
alism have been routed. Term limits for federal judges are a step
in this direction.
During the Reagan-Bush era, liberal constitutional doctrines
were not rolled back to the extent hoped for by many in the con-
servative movement. For example, in the area of separation of
powers, the Rehnqust Court handed down Morrison v. Olson,'
which upheld legislation that required the Executive to make a
showing of good cause before it could dismiss the independent
counsel-one of the Executive's inferior officers. In Casey v.
* Fellow, the Bradley Project; Former Chief of Staff to Vice President J. Danforth
Quayle; A.B. 1973, Harvard College; Ph.D. 1979, Harvard University.
1. Brown v. Bd. of Educ., 347 U.S. 483 (1954) (holding that segregation of white and
black children in state public schools solely on the basis of race denies black children the
equal protection of the laws guaranteed by the Fourteenth Amendment).
2. Roe v. Wade, 410 U.S. 113 (1973) (holding that a right to abortion is grounded in a
constitutional right of privacy).
3. See, e.g., Baker v. Carr, 396 U.S. 186 (1962) (holding that claims concerning legisla-
tive apportionment are justiciable).
4. See, eg., Katzenbach v. Morgan, 384 U.S. 641 (1966) (holding that a congressional
ban on state English literacy tests for voting was constitutional under the Congressional
Enabling Clause in Section 5 of the Fourteenth Amendment, even though the Court itself
would not have found that the these literacy tests violated the Equal Protection Clause).
5. 487 U.S. 654 (1988) (holding that the independent counsel provisions of the Ethics
in Government Act of 1978 do not violate the Appointments Clause of Article m or the
principle of separation of powers).

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