¹ I have looked at most of the major textbooks on the Supreme Court. None of them disaggregates the concept ‘political’, although many do cover several of the aspects 1 shall be discussing. The consequence is that a confusion arises not only as to how far it is possible, conceptually, for the Court to be apolitical but also as to how best it should carry out its functions. Political scientists are implicitly aware of most of these issues; popular commentators, politicans and many legal academics seem to be much less so. An excellent instance is the recent collection of essays edited by Lamb, Charles M. and Halpern, Stephen C., The Burger Courl: Political and Judicial Profiles (Urbana and Chicago: University of Illinois Press, 1991)Google Scholar. No distinctions are made between the different political roles played by the justices and virtually no differentiation between what is political and what is judicial. O'Brien, Even David's fine general text (Storm Center: The Supreme Court in American Politics (New York: Norton, 1986))Google Scholar, although it covers most of the notions to which I want to draw attention, only implicitly disaggregates the concept of ‘political’ into its constituent parts.

² Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989); Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

³ Jackson, Robert H., The Supreme Court in the American System of Government (Cambridge, Mass.: Harvard University Press, 1955), p. 55.Google Scholar

⁴ Easton, David, ‘An Approach to the Analysis of Political Systems’, World Politics, 9 (1956–1957), 383–400.CrossRefGoogle Scholar

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⁶ Roe v. Wade, 410 U.S. 113 (1973) at 153.

⁷ Friedman, Lawrence M., A History of American Law (New York: Simon & Schuster, 1975)Google Scholar; Corwin, Edward S., ‘The “Higher Law” Background to American Constitutional Law’, Harvard Law Review, 42 (1928–1929), 149–85, 365–409CrossRefGoogle Scholar; Lieberman, Jethro K., The Litigious Society (New York: Basic Books, 1981).Google Scholar

⁸ Most obviously the NAACP as recorded in Kluger, Richard, Simple Justice (New York: Knopf, 1976)CrossRefGoogle Scholar and the ACLU as recorded in Walker, Samuel, In Defence of American Liberties: A History of the ACLU (New York: Oxford University Press, 1990).Google Scholar But conservatives in the past and increasingly in the present are also deeply involved; see Vose, Clement E., Constitutional Change: Amendment Politics and Supreme Court Litigation since 1900 (Lexington, Mass.: Lexington Books, 1972)Google Scholar; and Epstein, Lee, Conservatives in Court (Knoxville: University of Tennessee Press, 1985).Google Scholar

⁹ Hodder-Williams, Richard, ‘Litigation and Political Action: Making the Supreme Court Activist’, in Williams, Robert, ed., Explaining American Politics: Issues and Interpretations (London: Routledge, 1990), pp. 116–43.Google Scholar

¹⁰ Hodder-Williams, Richard, ‘The Strange Story of Judge Robert Bork and a Vacancy on the Supreme Court’, Political Studies, 36 (1988), 613–37CrossRefGoogle Scholar; Bronner, Ethan, Battle for Justice: How the Bork Nomination Shook America (New York: W. W. Norton, 1989)Google Scholar; McGuigan, Patrick B. and Weyrich, Dawn M., Ninth Justice: The Fight for Bork (Washington, DC: Free Congress Research and Education Foundation, 1990).Google Scholar

¹¹ Cf. Jackson's, Robert comment that the Court is by nature a ‘substantially passive instrument, to be moved only by the initiative of litigants’ (The Supreme Court, p. 12).Google Scholar

¹² Faux, Marian, Roe v. Wade: The Untold Story of the Landmark Decision that Made Abortion Legal (New York: Macmillan, 1988)Google Scholar. See also Friendly, Fred W. and Elliott, Martha J. H., The Constitution: That Delicate Balance (New York: Random House, 1984), pp. 202–8.Google Scholar

¹³ Friendly, and Elliott, , The Constitution, p. 207.Google Scholar

¹⁴ Cf. Chief Justice Taft's comments to Congress in 1925: ‘Litigants have their rights sufficiently protected by a hearing or trial in courts of first instance and by one review in an intermediate appellate Federal Court. The function of the Supreme Court is conceived to be not the remedying of a particular litigant's wrong, but the consideration of cases where decisions involve principles, the application of which is of wide public or governmental interest’ (quoted in Schmidhauser, John, The Supreme Court: Its Politics, Personalities and Procedures (New York: Holt, Rinehart, 1960), p. 122)Google Scholar; or Chief Justice Fred Vinson addressing the American Bar Association in 1949: ‘To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolutions will have immediate importance far beyond the particular facts and parties involved’ (quoted in Murphy, Walter F. and Pritchett, Herman C., eds, Courts, Judges and Politics, 1st edn (New York: Random House, 1961), p. 55).Google Scholar

¹⁵ Brennan, William Jr, ‘The National Court of Appeals: Another Dissent’, University of Chicago Law Review, 40 (1973), 418.CrossRefGoogle Scholar

¹⁶ For the story ofthat case, see Irons, Peter, The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court (New York: Free Press, 1988), pp. 253–80Google Scholar. The judgement of the district court against Jane Hodgson was affirmed under Hodgson v. Randall, 402 U.S.967 (1971), but ‘Mr Justice Douglas is of the opinion that probable jurisdiction should be noted and the case set for argument’.

¹⁷ Roemer, Ruth, ‘Abortion Law Reform and Appeal: Legislative and Judicial Developments’, American Journal of Public Health, 61 (1971), 502.CrossRefGoogle Scholar

¹⁸ The critical path-breaking article was Lucas, Roy, ‘Federal Constitutional Limitations on the Enforcement and Administration of State Abortion Statutes’, North Carolina Law Review, 46 (1968), 730–78.Google Scholar

¹⁹ People v. Belous, 71 Cal 2d 954, 458 P2d 194.

²⁰ United States v. Vuitch, 305 F.Supp. 1032 (1969), reversed by the Supreme Court in United States v. Vuitch, 402 U.S. 62 (1971), on the grounds that the DC law was not unconstitutionally vague.

²¹ Babbitz v. McCann, 310 F.Supp. 293 (E.D. Wis. 1970).

²² Baker v. Carr, 369 U.S. 186 (1962); Strum, Phillippa, The Supreme Court and ‘Political Questions’: A Study in Judicial Evasion (University: University of Alabama Press, 1974).Google Scholar

²³ de Tocqueville, Alexis, Democracy in America (New York: Doubleday, 1969), p. 281.Google Scholar

²⁴ Murphy, Walter F., Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964).Google Scholar

²⁵ Schwartz, Bernard, The Unpublished Opinions of lite Warren Court (New York: Oxford University Press, 1985)Google Scholar; Howard, J. Woodford, ‘On the Fluidity of Judicial Choice’, American Political Science Review, 62 (1968), 43–56.CrossRefGoogle Scholar

²⁶ O'Brien, , Storm Center, especially chap. 5.Google Scholar

²⁷ Excellent examples of all these are to be found in Lash, Joseph P., ed., From the Diaries of Felix Frankfurter (New York: Norton, 1975).Google Scholar

²⁸ Do ev. Bolton, 410 U.S. 179 (1973).

²⁹ Woodward, Bob and Armstrong, Scott, The Brethren: Inside the Supreme Court (New York: Simon & Schuster, 1979), p. 165.Google Scholar

³⁰ The next paragraphs draw heavily on Schwartz, Bernard, The Unpublished Opinions of the Burger Court (New York: Oxford University Press, 1988)Google Scholar, which broadly confirms the account published earlier in Woodward, and Armstrong, , The Brethren, pp. 165–89, 229–40.Google Scholar

³¹ Urofsky, Melvin I., ed., The Douglas Letters (Belhesda, Md: Adler & Adler, 1987), p. 181.Google Scholar

³² Griswold v. Connecticut, 381 U.S. 479 (1965).

³³ On Rehnquist, see Davis, Sue, Justice Rehnquist and the Constitution (Princeton, NJ: Princeton University Press, 1989).CrossRefGoogle Scholar

³⁴ Schwartz, , The Unpublished Opinions, pp. 120–40.Google Scholar

³⁵ Schwartz, , The Unpublished Opinions, p. 144.Google Scholar

³⁶ The full draft dissent is printed in Schwartz, , The Unpublished Opinions, pp. 141–3.Google Scholar

³⁷ The two justices had been best man at each other's weddings. There is some suggestion that, by 1971, their relations were less cordial: Woodward, and Armstrong, , The Brethren, pp. 173–4.Google Scholar

³⁸ Urofsky, , ed., The Douglas Letters, pp. 183–4.Google Scholar

³⁹ Woodward, and Armstrong, , The Brethren, pp. 183–9.Google Scholar

⁴⁰ United States v. Vuitch, 402 U.S. 62 (1971).

⁴¹ Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

⁴² Thornburgh, at 788.

⁴³ See Caplan, Lincoln, The Tenth Justice: The Solicitor General and the Rule of Law (New York: Knopf, 1987), pp. 135–54.Google Scholar

⁴⁴ Thornburgh, at 772–3.

⁴⁵ Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989).

⁴⁶ Webster, at 3058: ‘This case affords us no reason to revisit the holding of Roe … and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases’.

⁴⁷ Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), at 452–75, where White and Rehnquist supported her emphatic preference for using an ‘undue burden’ test in abortion cases.

⁴⁸ Hodgson v. Minnesota, 110 S.Ct. 2926 (1990).

⁴⁹ Ohio v. Akron Center for Reproductive Health, 110 S.Ct. 2972 (1990).

⁵⁰ Several observers of the Court in the late 1980s felt that Rhenquist would be able to lead the Court more effectively than Burger, partly because of his genial disposition and partly because of his intellect, and they observed that Rehnquist was becoming more centrist, presumably in order to marshall the Court better. The hard evidence for this view, however, is not strong. See Rohde, David W. and Spaeth, Harold J., ‘Ideology, Strategy and Supreme Court Decisions: William Rehnquist as Chief Justice’, Judicature, 72 (1988–1989), 247–50.Google Scholar

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⁵² Personal communications; Woodward, and Armstrong, , The Brethren, p. 167.Google Scholar

⁵³ See Schwartz, Bernard, Super Chief: Earl Warren and his Supreme Court (New York: New York University Press, 1983), pp. 72–127Google Scholar; Kluger, , Simple Justice, pp. 543–699Google Scholar; Elman, Philip, ‘The Solicitor-General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946–1960; An Oral History’, Harvard Law Review, 100 (1986–1987), 822–45.Google Scholar

⁵⁴ Schwartz, , The Unpublished Opinions, p. 151.Google Scholar

⁵⁵ In Ohio v. Akron Center for Reproductive Health, 110 S.Ct. 2972 (1990), at 2984. Scalia believes it is both improper and impossible for the Court to manage the abortion controversy and, therefore, it ought to withdraw. See, additionally: Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989), at 3064, 3065: ‘This Court's self-awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not judicial – a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive … the fact that our retaining control, through Roe, of what 1 believe to be, and many of our citizens recognize to be, a political issue, continuously distorts the public perception of the role of the Court’; Hodgson v. Minnesota, 110 S.Ct. 2926 (1990), at 2961: ‘The random and unpredictable results of our consequently unchannelled individual views make it increasingly obvious, Term after Term, that the tools for this job are not to be found in the lawyer's – and hence not in the judge's – workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so’.

⁵⁶ Urofsky, , The Douglas Letters, p. 185.Google Scholar

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⁵⁸ Wechsler, Herbert, ‘Towards Neutral Principles of Constitutional Law’, Harvard Law Review, 73 (1959–1960), 1–35CrossRefGoogle Scholar; Meese, Edwin III, ‘The Attorney-General's View of the Supreme Court: Towards a Jurisprudence of Original Intention’, Public Administration Review, 45 (1985), 701–4.Google Scholar

⁵⁹ Berns, Walter, ‘The Least Dangerous Branch, but Only If …’, in Theberge, Leonard J., ed., The Judiciary in a Democratic Society (Lexington, Mass.: Gower, 1979), p. 15.Google Scholar

⁶⁰ Bork, Robert, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990), p. 220Google Scholar. See also pp. 115–16: ‘[In the years since Roe] no one, however pro-abortion, has ever thought of an argument that even remotely begins to justify Roe v. Wade as a constitutional decision … There is no room for argument about the conclusion that the decision was the assumption of illegitimate judicial power and usurpation of the democratic authority of the American people’.

⁶¹ Maidment, Richard, ‘Policy in Search of Law’, Journal of American Studies, 9(1975), 301–20.CrossRefGoogle Scholar

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⁶³ See Roe v. Wade, 410 U.S. 113 (1973), at 207–8; Maher v. Roe, 432 U.S. 464 (1977), at 481.

⁶⁴ Tliornburgh, at 782–5.Google Scholar

⁶⁵ Akron v. Akron Center of Reproductive Health, 462 U.S. 416 (1973), at 420: ‘The doctrine of stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law. We respect it today and reaffirm Roe v. Wade’.

⁶⁶ Bowers v. Hardwick, 478 U.S. 186 (1986), at 197–8.

⁶⁷ Irons, , The Courage of Their Convictions, p. 391.Google Scholar

⁶⁸ Brown v. Allen, 344 U.S. 443 (1953), at 540.

⁶⁹ Fisher, Louis, Constitutional Dialogues: Interpretation as Political Process (Princeton, NJ: Princeton University Press, 1988).CrossRefGoogle Scholar

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⁷⁴ New York Times, 14 September 1990.