How different a Supreme Court would we have today if, for example, either Ronald Reagan or George H.W. Bush had selected Utah Republican Senator Orrin Hatch as a justice, or if Bill Clinton had named former New York Governor Mario Cuomo? If both Hatch and another experienced Republican politico, plus Cuomo and a second national Democrat, had joined the court between 1986 and 1994, in place of, say, Justices Kennedy, Souter, Ginsburg and Breyer, today's court would look — and almost certainly act — radically different than it does.

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Those hypothetical nominations would have represented a return to the old Hugo Black-Earl Warren pattern but, ironically, it may be that the jurists on today's Supreme Court are actually far more comfortable with exercising far-reaching judicial power than would be electorally experienced national politicians who for more than a half-century now have been passed over for every vacancy since Warren's selection in 1953.

There can be little argument that the last dozen years of the Rehnquist court have witnessed a consistent pattern of muscular judicial assertiveness. There likewise is no doubt that both highly conservative and relatively liberal justices have repeatedly embraced judicial activism. To argue that a court with more politically experienced justices would be far more inclined than the current bench to practice true judicial restraint at both ends of the ideo-logical spectrum is, of course, inherently speculative, but that analysis is one that bears serious consideration as a new generation of Supreme Court vacancies looms on the horizon.

The highly political nominees that Roosevelt and Truman placed on the court often exhibited considerably more deference toward executive branch actions and congressional legislation than do our present-day justices. That may at first glance seem surprising, but opposition to the reactionary judicial activism that characterized the pre-1937 Supreme Court was a defining element in New Deal politics. In addition, the extremely close personal and political ties that most of the Roosevelt and Truman nominees had to either the White House and/or the Congress also created a situation in which most, if not all, justices had a firsthand understanding of, and perhaps even sympathy for, the policies and practices of the court's two coordinate fed-eral branches.

Naming experienced national political figures to the Supreme Court may, counterintuitively, produce a bench that is more reluctant and measured in exercising judicial power than is a bench composed primarily of career jurists who largely lack any significant personal political experience. For more than a decade now, the Rehnquist court has cut back on the legislative powers of the U.S. Congress in a series of sometimes abstruse rulings based upon the Constitution's Commerce Clause or the highly obscure 11th Amendment. These decisions do not generate large headlines in daily newspapers, but cumulatively they have represented a remarkable reallocation of power between a previously unconstrained Congress and a Supreme Court that now has repeatedly asserted its own authority as the ultimate arbiter of federal legislative decision-making. A court with one or more justices who were themselves congressional veterans might well take a dramatically different, and far more deferential, attitude toward congressional power than have the judicially self-confident jurists of the Rehnquist era.

During the Supreme Court's 2003-04 term, the presidential election may have caused the justices to draw back from any of the widely visible acts of judicial assertiveness that had marked prior terms. In 2000, of course, the court was squarely in the middle of the disputed presidential election that its 5-to-4 ruling in Bush v. Gore decisively resolved. In 2003, in Lawrence v. Texas, Justice Kennedy's majority opinion not only voided all remaining state sodomy statutes punishing consensual and private adult sexual relations but also delivered a ringing moral declaration of the fundamental equality of gay and lesbian Americans.

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