"A democratic vote by nine lawyers."

That was one of Justice Antonin Scalia’s angry dissenting flourishes last month. He was talking about the Supreme Court’s decision on "the pure policy question" of whether the procedure that opponents call "partial-birth" abortion should be banned-as hundreds of elected officials in 31 states had tried to do until five Justices swept their laws aside. In another case, Scalia likened the Court to "some sort of nine-headed Caesar."

Dear me, must the man quarrel so? Can’t he see that most of us find "strict constructionists" boring and semantical contortionists rather appealing, at least when they come down on our side?

But to give Scalia his due, that time of year has come when some of us who like many of the laws made by the Justices pause to wonder how their brand of judicial review squares with the Constitution’s guarantee of a "republican form of government," which once meant leaving most of the lawmaking to elected officials.

Were I a lawgiver, I might issue decrees similar to the Court’s on school prayer, affirmative action preferences, Miranda rights, abortion rights, pornographers’ rights, nude dancers’ rights, gay rights, parents’ (vs. grandparents’) rights, HMOs’ rights, patients’ rights, and states’ rights. The majority does sometimes veer too far to the left, or to the right, for my taste, as in the 5-4 ruling on June 28 that women have a virtually absolute right to abort even what Scalia calls "a live-and-kicking child that is almost entirely out of the womb." And in the line of 5-4 decisions exempting states from federal regulatory laws such as the Age Discrimination in Employment Act. But usually the Court seems fairly sensible. It’s not such a bad superlegislature, on the whole.

The nagging question is why we have a superlegislature at all. Astute critics of moderate and liberal persuasions have lately joined conservatives in raising that question, as Justices across the ideological spectrum have imposed "constitutional" rules that become ever-harder to connect to anything in the Constitution.

A Washington Post editorial worries that "the Court sometimes seems to be making up the law as it goes along" in issuing abortion rulings that have "an uncomfortably legislative feel to them" and that cast doubt on "the legitimacy of the role it has come to play"-especially late in pregnancy, when it becomes "harder … to distinguish between abortion and infanticide."

National Review’s Ramesh Ponnuru complains that the Justices see democratic government "as given to irrational spasms of anger and prejudice," and carry their passion for judicial supremacy to the point of "arguing, even pleading, for oligarchy." Hyperbolic? Perhaps. But consider the grandiosity of the 1992 joint opinion in which Justices Sandra Day O’Connor, Anthony M. Kennedy, and David H. Souter held that Roe vs. Wade (or most of it) must remain the law of the land.

First they said that the Court’s role in such politically charged cases was to call on "the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." Then they worried that it would look like "a surrender to political pressure … to overrule under fire" such a decision. Finally they explained that while people who disapprove will be "tested by following" the Court, follow they must because if "the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals."

"The Imperial Judiciary lives," marveled Scalia in response.

Note that the same opinion also acknowledged that at least one (and perhaps all) of its authors had "reservations" about whether abortion rights were "rooted in the Constitution" at all. Which helps explain the headline on Ponnuru’s article: "Supreme Hubris: How the Court Overrules the Constitution."

A more liberal analyst sounds a similar note by asserting that "the defining characteristic of this Court, like [the Warren Court], is hubris." Both, explains The New Republic’s Jeffrey Rosen, "combine haughty declarations of judicial supremacy with contempt for the competing views of the political branches. The Rehnquist Court differs from the Warren Court only in that it prefers to follow conventional opinion rather than challenge it…. Rehnquist’s achievement as Chief Justice has been to reconcile his liberal and conservative colleagues to the aggrandizement of the Supreme Court’s power at the expense of Congress and the state legislatures." Rosen adds that "the Court’s passive-aggressive attitude toward public opinion is part of its strategic concern for its own institutional prerogatives above all."

Harmonizing with Rosen, professor Robert F. Nagel of the University of Colorado theorizes (in The Wall Street Journal) that "the basic purpose of contemporary judicial activism is to maintain the institutional prestige of the federal judiciary." Nagel tellingly juxtaposes the Court’s invocation of stare decisis (the doctrine that judges should generally adhere to precedents) in the 1992 abortion decision with that in its 7-2 decision on June 26 requiring police to continue reading Miranda warnings to all arrested suspects: Chief Justice William H. Rehnquist’s opinion did not say that the Constitution requires such warnings, as the Warren Court had suggested in 1966, in Miranda vs. Arizona. "It cannot say that," as Scalia stressed in dissent, "because a majority of the [current] Court does not believe it." But the Court nonetheless struck down a (long-dormant) 1968 law in which Congress had said what a majority of the Justices now believe-that the Constitution allows use of "voluntary" confessions even when the suspects get no warnings.

"Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance," Rehnquist explains, the Warren Court "announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves." In other words, even if we were wrong, and Congress was right, our supremacy must be respected, and we are sticking to our guns. Besides, Miranda has worked pretty well, and its warnings have been on television a lot ("become part of our national culture").

"Why," asks Nagel, "would stability in constitutional interpretation be especially important in a case that has provoked powerful opposition [Roe] and also in one that has gained widespread acceptance [Miranda]?" After all, every Justice has voted to junk less famous precedents by the passel. Nagel explains: "The reversal of a decision that has been widely attacked runs the risk of appearing like a capitulation to pressure; the reversal of a decision that is widely accepted could invite popular derision. What is common to both situations, clearly, is that the prestige of the Supreme Court is at special risk." And some (perhaps most) Justices see their own "legitimacy," to borrow from the 1992 abortion opinion, as "not readily separable" from "the nation’s commitment to the rule of law."

Perhaps such criticism "doesn’t much matter," suggests Jeremy Rabkin, who teaches at Cornell University, because "the country isn’t looking for consistent principles." After the rush of big decisions in late June, Rabkin notes (in The Weekly Standard), "liberals complained about some and conservatives complained about others and … no one wanted to talk about the Court’s performance on any plane higher than the immediate partisan box score."

And perhaps such criticism is as tired as that of the man who complained in 1937 that "the Court … has improperly set itself up as … a superlegislature … reading into the Constitution words and implications which are not there." And the one who kvetched in 1861 that "if … the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers." And the one who whined in 1819 that "the Constitution … is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." (These critics were none other than Franklin D. Roosevelt, Abraham Lincoln, and Thomas Jefferson.)

Judicial review is a vital safeguard against majoritarian tyranny. As long as we have such review, we will inevitably see popularly enacted laws swept aside based on highly debatable inferences from vague constitutional provisions by as few as five Justices. But our unelected philosopher-kings (and queens) would be easier to take if they would heed a lesson that the late Justice Thurgood Marshall derived from a gentle put-down by his wife: "Every once in a while," Marshall said with a chuckle, "you have to look yourself in the mirror and ask yourself, `Who do you think you are? You aren’t so special.’ "