“Constitutional law professors have been very upset lately with the U.S. Supreme Court” (p. 181). So begins Keith E. Whittington's contribution to this collection of 11 essays on the subject of, in the words of the subtitle, “judicial supremacy and the Constitution.” Many in the unhappy chorus mentioned by Whittington are mainstream legal academicians who decry the conservative judicial activism sometimes practiced by the Rehnquist Court; they long for a robust activism in defense of liberal political values that characterized Warren and some Burger Era rulings. But the contributors to this book are not members of that chorus. Instead, most question or condemn the liberal activism preferred by the legal mainstream, while a few reject both styles of activism and hanker for a modest judicial role characterized by editor Christopher Wolfe as “traditional judicial review” (p. 202).

Nine of the essays—those by Hadley Arkes, Gerard V. Bradley, George W. Liebmann, Michael W. McConnell, Robert F. Nagel, Jack Wade Nowlin, Steven D. Smith, Jeremy Waldron, and Michael Zuckert—were originally delivered as papers at the American Public Philosophy Institute conference on “Reining in Judicial Imperialism” (p. 9). While the year of the conference seems not to be noted in the book, a statement in Arkes's essay, referring to Bowers v. Hardwick as having been decided “[a]bout a dozen years ago” (p. 59), indicates a date of about 1998. Endnotes for the conference essays suggest that updating for publication was done only very sparingly.

According to the editor, the central problem addressed by the authors is the “judicial imperialism” (p. 3) that has”profound[ly] transform[ed]” the role of the Supreme Court in a way “fundamentally inconsistent” with the Framers' scheme of separation of powers (p. 1). “[E]xtreme notions of judicial power” have encouraged Americans to perceive the Court as “the final or ultimate authority on constitutional issues” (p. 1, emphasis in the original)—the precise situation that Abraham Lincoln, in his first inaugural address, cautioned against in the aftermath of the Dred Scott decision, a warning that inspired the book's title. “[I]f the policy of the government, upon vital questions, … is to be irrevocably fixed by decisions of the Supreme Court,” declared the sixteenth president, “the people will have ceased, to be their own rulers, having … practically resigned their government, into the hands of that eminent tribunal ” (p. 1, emphasis added). The central question thus becomes how to limit judicial power “effectively in order to reestablish a full measure of republican government” (p. 2). In Bradley's words, the “Framers did not endorse—they could scarcely imagine—an insulated judicial prerogative to determine what the law should be” (p. 15).

The contributors have far more to say about the problem than about solutions. Changing course will be no easy task, Wolfe admits, for “elite intellectual opinion is strongly behind the courts,” because the judiciary gives elites “the political power that they cannot win through elections.” Moreover, the legal profession has been educated by those who are “committed to modern notions of judicial power.” Finally, “‘new class’ professions,” such as journalists and entertainers, have aligned themselves with “liberal intellectuals” and so lend their influence to those who would oppose efforts to rein in ambitious judges (pp. 2–3).

Of course, laments about federal judges are nearly as old as the Republic. Judicial review, an absence of political accountability, and lengthy tenures in many instances soon combined in the nineteenth century to make the Court a frequent center of controversy. This was true not only when the justices negated legislative acts but also sometimes when they did not. McCulloch v. Maryland (1819) was a contentious decision not merely because the Court invalidated the state's tax on the Second Bank of the United States but because the Court sustained the statute chartering the bank. By 1893, concerns over an expanded judicial power were so widespread that Harvard's James Bradley Thayer cautioned judges not to step into the shoes of the lawmaker. Sixteen years later, Samuel Gompers railed against judicial intrusion into the American Federation of Labor's dispute with the Buck Stove and Range Co.—and implicitly disputed Charles Evans Hughes's counterassertion in 1907—by insisting that the Constitution and a judge's interpretation of it were not necessarily the same: “I still believe that the Constitution … is greater than any Judge” (“Gompers Raps the Courts,” New York Times, April 6, 1909, p. 18).

Even against that turbulent background, a prominent theme of That Eminent Tribunal is that the present situation is without parallel. The example cited most often in a majority of the essays is the opinion of Justices Anthony Kennedy, Sandra Day O'Connor, and David Souter in Planned Parenthood v. Casey (1992), particularly the so-called mystery-of-life passage. Zuckert finds in that paragraph and surrounding ones an “apparent endorsement of a nihilistic view of the universe—what meaning there is is meaning we supply (each of us) for ourselves” (p. 44). “A Constitution evolving to match the changing moral and metaphysical conceptions of the nation is one thing,” he maintains, “but a Constitution evolving to impose exotic ideas on the nation is quite another” (p. 45). As portrayed by several authors, the tone of the “Casey Three” (p. 54) is one of arrogance and presumptuousness, quite unbecoming of the servants of a republican nation. As Bradley contends, “The Court is telling us: ‘We will be your Court and you will be our people’” (p. 18).

Ironically, while preserving the “core” holding of Roe v. Wade (1973), that abortion should be allowed through at least the second trimester of pregnancy, Casey upheld nearly all of the Pennsylvania abortion regulations challenged in that case. These were provisions clearly designed to discourage abortions, and prior to Kennedy's arrival in 1987, most of those provisions would almost certainly have been struck down. Alongside ambivalent opinion showing that the public is troubled by abortion but desires that the option remain available, the decision tacked to starboard. The contrast between what the Court did and what it said in Casey and similar cases suggests that Congress and the people are probably less moved by judicial style and words than by judicial actions. Contributors to This Eminent Tribunal are concerned about both. The eventual impact of thoughtful commentaries such as theirs may depend on persuading the people that as possible parents of future acts, words and style matter, too.