The Reagan Court has been a source of great expectation for conservatives. If only a few more superannuated justices would retire (or die), then we could have the court’s unchecked authority in our own hands. A favorite target of pious hopes and voodoo dolls is the apparently senile Thurgood Marshall. An example of tokenism at its worst, Marshall has consistently opposed responsible self-government in his eagerness to construct an American elite class of feminists and minority politicians. What little he understands of the Constitution only arouses his ire. Early in May he publicly derided the Constitution’s bicentennial and heaped scorn upon the bigoted framers who sacrificed “moral principles for self-interest.”

Marshall is ingenuous enough to admit that the Founders would be appalled by his presence on the court. They would, but not nearly so much because of his color as for his manifest incompetence and the resentment he has displayed against their handiwork.

If we were to daydream, what would happen if a plague struck all the “liberal” justices? Exactly nothing. If we had any suspicion that Rehnquist, O’Connor, and Scalia would exercise judicial restraint and respect the Constitutional (and common law) protection of individual liberties, the recent decision against the Rotary should clear the air. The court unanimously upheld the right of California to compel local Rotaries to admit women. Every time the court takes a “states rights” position, it is inevitably to support a fashionable cause. Sure, it was a violation of civil liberties (like the right of association), but civil rights are small potatoes when the court sets out to decree political morality.

The justices forget that they are neither philosophers nor elected representatives; they are only lawyers paid to interpret the legal traditions of the U.S. Their personal ethical views are of no interest or relevance for the conduct of their office. But most judges seem possessed by a mania both to philosophize and to legislate.

At issue is the court’s exercise of judicial review. Of the Founding Fathers, Hamilton thought the Supreme Court should be able to nullify only such laws as unquestionably violated the Constitution. Madison and Jefferson were much more cautious. Andrew Jackson only stated the obvious in declaring that “the opinion of the Judges has no more authority over Congress than the opinion of Congress has over the Judges.”

Roger Taney, Jackson’s Chief Justice who shared the President’s views on the Constitution, has gone down in history as a great villain, because he refused to legislate morality from the bench. His decision on the case of runaway slave Dred Scott may have served to legitimize an immoral institution; it was, however, the only decision a responsible and law-abiding court could have handed down. As Lincoln argued in his First Inaugural Address, “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court . . . the people will have ceased to be their own rulers.”

It is up to Congress and the state legislatures to amend the Constitution; it is not up to the courts. Whether the judges are liberals or conservatives, it’s all the same. The courts’ overwhelming power gives as much reason for anxiety as a beautiful, vivacious wife: You would not entirely trust even your best friend or the bishop if they began to show an interest. Why is it better to trust, say, Paul Simon or Tim Wirth over Thurgood Marshall? Two reasons; first, that is the way the system was designed to work; second—and really more to the point—we are free to rid ourselves of the rascals on Capitol Hill whenever the electorate goes through one of its temporary fits of mental clarity, while nothing, not even brain death (in the cases of William O. Douglas and Thurgood Marshall), can halt the mischief of the Supreme Court.