Politics and the judiciary 231Congress when reviewing its decisions, particularly on national security and
foreign policy questions. The Burger Court did not reverse the policies of its
predecessor. Rather, it moderated them. It by no means gave up its right to
invalidate Acts of Congress, as for example in 1976 when it decided that an
attempt by the federal government to control the minimum wage regula-
tions for the employees of state and local governments was unconstitutional
(National League of Cities v. Usery), but it adopted a more tentative approach
to its task, deciding issues according to the shifting majorities on the Court,
avoiding either a strongly conservative or strongly liberal approach.
In the years from 1981 to 1988 President Reagan had the opportunity to
appoint three Justices, Sandra Day O’Connor, Antonin Scalia and Anthony
Kennedy, and to promote Justice William Rehnquist to Chief Justice. Presi-
dent Bush nominated David Souter and Clarence Thomas to the Court. Thus
these two Republican presidents were able to change the balance of power
on the Court, bringing about a more conservative direction to the course of
judicial review. The Reagan administration took on an active role in urging
on the Court a new attitude towards a number of policies, and the Court re-
sponded, although perhaps not to the extent that Reagan would have wished.
In the implementation of desegregation in schools the Court retreated from
the activism of earlier years, leaving more discretion to the states and local
school districts (Freeman v. Pitts, 1992). The Court adopted a less clear stand
on abortion (Planned Parenthood v. Casey, 1992). President Clinton had the op-
portunity to appoint two Justices in his first term of office – Ruth Ginsburg in
1993 and Stephen Breyer in 1994. Although both are at the liberal end of the
spectrum, the balance of power on the Court did not change, and its decisions
reflected this. In the field of affirmative action the Court outlawed the use
of quotas to give preference in employment to minorities (Adaran Constructors
v. Pena, 1995), and in the area of federalism has been much more protective
of states’ rights (US v. Lopez, 1995; US v. Morrison, 2000). It remains to be
seen whether the Court under Chief Justice Roberts will adopt a new, more
coherently conservative line or continue to follow the centrist position of the
Rehnquist Court.
Congress and the Court
In the space of fourteen years, the Supreme Court under Chief Justice War-
ren initiated new policies in a wide variety of ways, all of which were likely to
offend conservative elements in the community. As a result the Court came
under fierce attack both outside and inside Congress. The Constitution had
provided for an independent judiciary by providing that the judges should
hold office during good behaviour; that is, they could be removed only by
impeachment. However, the Constitution gave Congress a potential power
to discipline the Court, either through legislation or by proposing consti-
tutional amendments. From time to time throughout its history the Court
has come into conflict with the legislature. Congress has increased and
decreased the number of judges. On one occasion the legislature passed a