When it so chooses, as in Lawrence, as in Brown v. Board of Education in 1954, which initiated the slow desegregation of racially segregated Southern public schools, or as in Planned Parenthood v. Casey in 1992, when it forcefully reaffirmed Roe v. Wade, the 1973 ruling that had given constitutional protection to a woman’s right to choose abortion, the Supreme Court can ‘pull out all the stops’ in telling the American people that a historic change must indeed be made.

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Such moments of moral invocation occur only rarely, and none took place during the court’s 2003-04 term, notwithstanding three hotly contested cases challenging the George W. Bush administration’s executive detention of two U.S. citizens, and some 600 foreigners, whom it alleged were active supporters of the al Queda terror network. The cases offered the court an opportunity to either roundly condemn or expressly endorse President Bush’s pursuit of the war on terror. The court responded almost delicately, however, requiring that judicial recourse be made available to all the detainees but declining to spell out whether such opportunities for appeal would actually allow any of the captives to contest their status and obtain their freedom.

Those rulings effectively postponed any decisive action concerning the detainees until after the 2004 presidential election. A similar desire to avoid controversies that might have thrust the court into the midst of the 2004 contest also seemed apparent in the two other most highly visible legal cases of the 2003-04 term.

In Cheney v. U.S. District Court, Bush administration critics sought access to confidential documents generated by a politically controversial energy policy task force headed by U.S. Vice President Dick Cheney. Much as in the terror detainee cases, the court handed down a less-than-decisive ruling that effectively delayed any clear resolution of the dispute for many months.

The court’s best-known and most closely watched case was Elk Grove Unified School District v. Newdow, in which an atheist parent objected to his daughter being confronted each morning in her public school classroom with the words ‘under God’ that are part of the Pledge of Allegiance to the U.S. flag. A lower court had agreed with Michael Newdow that the U.S. Constitution’s prohibition of any government ‘establishment’ of religion made the invocation of ‘God’ unconstitutional, but when the California school district appealed that decision to the U.S. Supreme Court, a majority of the justices chose to duck the merits of the controversial religious issue. Finding that a child custody dispute between Newdow and his daughter’s mother made the case unfit for decision, the high court simply vacated the lower court ruling. Had the justices instead affirmed the lower court’s decision, they almost certainly would have made themselves a major presidential election issue.

The 2003-04 term’s unusual outbreak of judicial meekness may well represent a strategic calculation by the justices to keep themselves as far distant from a presidential election year’s partisan debates as possible, particularly in light of how the court itself ended up deciding the 2000 contest. With the detention cases, Vice President Cheney’s dispute and the Pledge of Allegiance controversy all sidelined until sometime in 2005 or later, campaign arguments about the court, and about the kinds of nominees George W. Bush or John F. Kerry would add to the bench when the inevitable vacancies occur over these next four years, remained far down the list of presidential election issues.

That relative absence of the court, its justices and its potential future justices from the 2004 election may point toward a continuation of the low-visibility appellate jurist selections that have occurred without interruption for more than a third of a century now. In a more politicized climate, however, the president might well opt to revert to the Roosevelt-Truman-Kennedy-Johnson model and look toward a top political ally, or a close personal acquaintance, to fill a crucial high court vacancy. But where the court instead has kept itself as far distant as possible from partisan firefights, the president may feel wholly comfortable in continuing the new tradition of promoting little-known but well-experienced appellate judges to the nation’s highest court. If so, it’s a safe bet that those new justices, irrespective of whether they would be named by a Democratic president or a Republican, will be just as at home with the resolutely aggressive exercise of judicial power as are the current justices. Should that indeed come to pass, the Supreme Court’s unchallenged stature as the ultimate and final arbiter of U.S. governmental power will be ratified once more.

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