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Excerpt: 2008 election will define court's future

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  • Toobin: 2008 presidential election will shape court for decades to come
  • Three justices likely to leave court soon, Toobin says
  • Ideology is what sets the justices apart, Toobin writes
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By Jeffrey Toobin
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CNN.com has been running excerpts from CNN senior legal analyst Jeffrey Toobin's book, "The Nine: Inside the Secret World of the Supreme Court," published by Random House. This is the Epilogue.

On the day that President Bush nominated John Roberts to the Supreme Court, the future chief justice reflected upon the great symbol at the heart of Cass Gilbert's design -- the steps.

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Jeffrey Toobin is CNN's senior legal analyst and authorof "The Nine: Inside the Secret World of the Supreme Court.

"I always got a lump in throat whenever I walked up those marble steps to argue a case before the court," Roberts said, "and I don't think it was just from the nerves."

Over the years, countless Americans have shared Roberts' sense of awe as they entered Gilbert's temple of justice. Soon, however, no one else will. The steps will be closed to the public as an entranceway to the court.

Rehnquist made the renovation of the Supreme Court building a major priority during his final years as chief justice. Like many government building projects, a fairly modest restoration metastasized into an over-budget, much-delayed shambles, which may (or may not) be completed around 2009.

And like much else in Washington after September 11, 2001, the design decisions about the renovation were made with obsessive attention to the issue of security. Most notably, the public entrance up the front steps -- the defining feature of Gilbert's concept for the structure -- was deemed an undue risk. So a new entrance will be gouged into the side of the steps, near the base of the building. Visitors will still be allowed to depart down the front steps, and watch Gilbert's vision recede behind them.

Whether the closing of the steps turns out to be a metaphor for deeper change at the court will be determined in part by the justices but even more by the American people. More than any other influence, the court has always reflected the political currents driving society.

In the early days of the Republic, when regional conflict predominated, that tension could be seen on the court. Presidents felt obligated to replace, say, a California justice with another from the same state. (Later, of course, it passed almost without notice that the court for many years had two justices, William Rehnquist and Sandra Day O'Connor, from the relatively unpopulated state of Arizona.)

In the early 20th century, the great tide of European immigration put religion near the center of politics, and the tradition of a "Catholic seat" and a "Jewish seat" arose. The fact that President Clinton drew little comment by appointing two Jews to the court proved the passing of this era. Likewise, there is little significance there are now five Catholic justices. The most important liberal in the court's history, William Brennan, was Catholic, too.

Today, the fundamental divisions in American society are not regional or religious but ideological. Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito were not appointed because they are Catholic but because they are conservative. The base of the Republican Party -- from James Dobson and Jay Sekulow among the evangelicals, to Ted Olson and Leonard Leo among the Federalists -- recognized that they could use their influence to shape the court.

They organized more, mobilized more, and cared more about the court than their liberal counterparts. And when their candidate won the presidency, these conservatives demanded more -- a pair of justices who were precisely to their liking (and the ejection of one nominee, Harriet Miers, who was not.) With admirable candor, and even greater passion, conservatives have invested in the court to advance their goals for the country.

In public at least, Roberts himself purports to have a different view of the court than his conservative sponsors. "Judges are like umpires," he said at his confirmation hearing, "Umpires don't make the rules; they apply them." Elsewhere, Roberts has often said, "Judges are not politicians."

None of this is true. When it comes to the core of the court's work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases. As Richard A. Posner, the great conservative judge and law professor has written, "it is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly." Constitutional cases, Posner wrote, "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms."

When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. There is, for example, no meaningful difference between Scalia and Ruth Bader Ginsburg in intelligence, competence, or ethics. What separates them is judicial philosophy -- ideology -- and that means everything on the Supreme Court. Future justices will all likely be similarly qualified to meet the basic requirements of the job. It is their ideology that will shape the court and thus the nation.

So one factor -- and only one factor -- will determine the future of the Supreme Court: the outcome of presidential elections. Presidents pick justices to extend their legacies; by this standard, George W. Bush chose wisely.

The days when justices surprised the presidents who appointed them are over -- the last two purported surprises, David Souter and Kennedy, were anything but. Souter's record pegged him as a moderate; Kennedy was nominated because the more conservative Robert Bork was rejected by the Senate.

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All of the subsequently appointed justices -- Thomas, Ginsburg, Breyer, Roberts and Alito -- have turned out precisely as might have been expected by the presidents who appointed them. That will almost certainly be true, too, of the replacements for the three justices most likely to depart in the near future -- John Paul Stevens, Souter and Ginsburg. Photo See photos and bios of the justices »

This is as it should be. Cass Gilbert's steps represent at some level a magnificent illusion -- that the Supreme Court operates at a higher plane than the mortals who toil on the ground. But the court is a product of a democracy and represents, with sometimes chilling precision, the best and worst of the people. We can expect nothing more, and nothing less, than the court we deserve. E-mail to a friend E-mail to a friend

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