The case which the Court chose to ignore came about when the owners of an Upper West Side brownstone filed a lawsuit several years ago, arguing that rent-stabilization regulations constituted an illegal seizure of their property. The owners noted that three of the six rental apartments in their building are subject to rent-stabilization regulations. Rent increases are set not by the market but by the government, and tenants generally have the power to renew leases for as long as they wish.

The building owners noted that rents in the three regulated apartments were about $1,000 a month. The apartments would rent for more than double that sum in an unregulated market, according to the owners’ lawsuit.

The owners took their argument to the Supreme Court after a state Court of Appeals panel ruled that rent regulations did not constitute an illegal taking of property by the government in part because the owners were aware of the regulations when they bought the building. The panel also noted that the owners did have other options, including demolition (if, that is, they did not build new housing on the site).

In the real world, of course, owners actually have very few options. The Court of Appeals noted that owners have the option of evicting a troublesome tenant, but that process is about as cumbersome as firing an incompetent but tenured teacher.

The Supreme Court decided to let the Court of Appeals panel have the final decision. The Supremes traditionally do not comment on cases they choose to ignore, so it’s impossible to know their opinions.

If they simply decided it was better to stay away from landlord-tenant disputes in New York City, well, they probably made a wise decision. If this issue is ever to be resolved, it must be done through the political process, and not by fiat from Washington.

It is a summer exercise that often descends into ugly insinuations and cheap shots while evading real questions. But perhaps this time will be different, as the president nominates—and the Senate considers—a replacement for retiring Justice John Paul Stevens.

Influential pundits on the right are advising the Senate Republican leadership to mount a sustained opposition to virtually any nominee chosen by President Obama. The time has come, they argue, for a partisan showdown on the most basic issues that divide the country.

“I think Republicans should want to have a serious debate on the Constitution,” says William Kristol, editor of The Weekly Standard, Fox News commentator and Republican strategist. “I’m struck when you listen to the Tea Party activists. They often talk about, ‘We need to be constitutionalists, we need to be constitutional conservatives.’”

The aim of such a debate would not be to influence the court, since the Senate’s majority seems certain to overcome opposition to an Obama nominee—as it did when Sonia Sotomayor ascended to the highest bench last year.

The purpose would be to drive votes for Republicans in the upcoming midterm election—because Mr. Kristol and others in his camp plan to introduce health care reform and other legislative controversies into the nomination debate as “constitutional issues.”

What exactly do they mean by “constitutional”? On the increasingly powerful fringes of the Republican right, a category that includes some Tea Party activists, the Constitution is interpreted as prohibiting every social and political advance since before the Civil War. They would outlaw the Federal Reserve System, the progressive income tax, Social Security, Medicare, environmental protection, consumer regulation and every other important federal initiative of the past century.

Targets of the “constitutional conservatives” would certainly include civil rights legislation that guarantees equal protection under law to minorities and women, with right-wing zealots, especially in the South, speaking openly again about state’s rights—the old code for racist oppression and segregation. 
A serious debate would highlight this extremism, which Democrats, independents and Republicans alike have rejected for most of the past five decades. (Retiring Justice Stevens was a Republican nominee, placed on the court by Gerald Ford and confirmed unanimously.) A serious debate might also reveal the incoherence of a right-wing jurisprudence that deprives government of the power to address basic national problems even as it empowers the president in wartime with absolute and monarchical authority.

In a recent memo on the upcoming Supreme Court battle, political theorist William Galston, pollster Stan Greenberg and demographic analyst Ruy Teixeira urge their fellow Democrats not to back away from a constitutional debate. They warn that the judicial agenda of the Republican right would undermine not only Social Security and Medicare but the separation of church and state and the very rule of law in America.

“Democrats can—and must—respond firmly and categorically to this extremist philosophy,” write the three strategists. “They must respond by saying that the Democratic Party proudly upholds the traditional American view of the Constitution—the view of the founding fathers of this country—George Washington, Thomas Jefferson, Benjamin Franklin, Alexander Hamilton and John Adams.”

Upheld by Republicans as well, from Abraham Lincoln and Theodore Roosevelt to Richard Nixon and Ronald Reagan, those principles encompass religious freedom for everyone regardless of sect or creed; the capacity of elected representatives to legislate for the common good; and the protection of individual liberty within a framework of enforceable laws.

So yes, let the debate rip—and let the exposure of the radical right begin.

jconason@observer.com

(Judicial candidates currently get the endorsement of a major party not by running in primaries, but in judicial conventions. More on the initial case here.)

In addition to making it a big day for the Brennan Center, this should be good news for Eliot Spitzer, who has been pushing for judicial primaries as part of a broader reform agenda that includes non-partisan redistricting and new rules on campaign finance and governmental ethics. A victory on this issue in the Supreme Court would hand Spitzer a crushing victory over the party chairs, whose ability to create judges gives them much of their remaining political leverage and influence.

But an attorney working for one of the defendants, the State Supreme Court Justices Association, said Spitzer's calls change are essentially meaningless.

"It doesn't change anything," said the attorney, Joseph Forstadt. "If the law is established, the governor can call for changes, but our expectation is that matters will be returned to the status quo."

He continued:

"The only public officials, Governor Spitzer and Senator DeFrancisco are the only two public officials who have gone on record in support of primaries for supreme court judges. The State Association of Supreme Court Judges, the bar association, have gone on the record in support of a convention system.

"Michael Cardozza, the city's corporation counsel, went on record in support of convention system as opposed to primaries. That's the key issue."

Is he right? What's going to happen here?

-- Azi Paybarah

As a reader, who passed on today's ruling, noted, "the defendants could always try to go next to the US Supreme Court."

A copy of the decision is here.

-- Azi Paybarah

Such honesty will not be welcome among those who have sought to placate the religious right without arousing the moderate majority. But the passage of the South Dakota bill, soon to be imitated in dozens of other states, should at last require every one of those politicians to explain why he or she believes that rape and incest demand exceptions to the anti-abortion rule.

For anyone who really believes that from the moment of conception every fetus becomes a human being, with the same inalienable rights as any other person, there can be no moral distinction in cases of rape or incest. When pregnancy results from a brutal crime, the perpetrator is not the fetus but the rapist. Yet many supposedly pro-life politicians still insist on that exception, despite its rejection by the Catholic hierarchy and Protestant fundamentalist theologians.

To demand an exception for rape or incest is and always has been strictly a matter of political convenience rather than moral philosophy. Among the pandering pols who cling to the exception—and thus evade the logic of their own argument—are George W. Bush and John McCain, along with a massive cohort of other ardently “pro-life” elected officials. They are guided by opinion polls that consistently show support for the exception among most Americans, including many who otherwise believe abortion is wrong.

Endorsing the exception conveniently allows any politician to sound more moderate without completely forfeiting his or her anti-abortion credentials. The leaders of the religious right and the anti-abortion movement have colluded with their conservative Republican favorites by permitting this little deception. They know that as a practical matter, the exception would have little effect.

Thanks to South Dakota’s legislators, who forthrightly outlawed abortion for victims of rape and incest, the old dodge has now been exposed. The passage of their bill has required certain moralizing politicians to contort themselves into comical positions.

Proving his zeal to make himself acceptable to his critics on the religious right, for instance, Mr. McCain authorized the release of a transparently stupid statement to the press. His spokesman said that the Arizona Republican “would have signed the [South Dakota] legislation, but would also take the appropriate steps under state law—in whatever state—to ensure that the exceptions of rape, incest or life of the mother were included.” Signing the legislation, of course, would have outlawed the exceptions.

Presidential ambition is twisting the Senator’s “straight talk” these days, but Mr. McCain isn’t alone in trying to satisfy the religious right without alienating mainstream voters. The Republican governor of South Dakota signed the bill, while simultaneously trying to disown it as something that legislators “chose to do” on their own. Senator John Thune, the South Dakota Republican who unseated Democrat Tom Daschle with anti-abortion rhetoric, promised to “continue to watch [the South Dakota bill] closely as it moves through the courts.” How courageous!

In Washington, the President’s press secretary responded to questions about the bill by noting that it was a “state matter,” and that the President always seeks to build a “culture of life,” except for those fetuses conceived in rape or incest. It would be interesting to hear Mr. Bush articulate the reasoning that led him to that contradictory position.

As we move toward the day of reckoning in the Supreme Court and in state capitals across the country, Americans will have to consider an even harder question. It’s an issue that most abortion opponents do not dare to confront.

Under the South Dakota bill, abortion will become a felony, but only the doctor who performs the procedure is subject to prosecution. The woman who seeks and pays for the operation is not. Yet if abortion equals murder and must be outlawed, then why should doctors but not patients be subject to criminal penalties for participating in an illegal conspiracy?

For anyone who truly believes that terminating a pregnancy is the same as homicide, there can be no moral justification to indict the doctor without prosecuting the patient as well. Such a law denies equal protection to physicians and might well be held unconstitutional—even if there is no right to privacy that shields abortion itself.

It is long past time for Americans to consider these issues with the seriousness they deserve and stop behaving like the politicians who pretend to have it both ways. They should understand that if the religious right wins this struggle, the consequences will be extreme indeed—and there will be no exceptions.

Such honesty will not be welcome among those who have sought to placate the religious right without arousing the moderate majority. But the passage of the South Dakota bill, soon to be imitated in dozens of other states, should at last require every one of those politicians to explain why he or she believes that rape and incest demand exceptions to the anti-abortion rule.

For anyone who really believes that from the moment of conception every fetus becomes a human being, with the same inalienable rights as any other person, there can be no moral distinction in cases of rape or incest. When pregnancy results from a brutal crime, the perpetrator is not the fetus but the rapist. Yet many supposedly pro-life politicians still insist on that exception, despite its rejection by the Catholic hierarchy and Protestant fundamentalist theologians.

To demand an exception for rape or incest is and always has been strictly a matter of political convenience rather than moral philosophy. Among the pandering pols who cling to the exception—and thus evade the logic of their own argument—are George W. Bush and John McCain, along with a massive cohort of other ardently “pro-life” elected officials. They are guided by opinion polls that consistently show support for the exception among most Americans, including many who otherwise believe abortion is wrong.

Endorsing the exception conveniently allows any politician to sound more moderate without completely forfeiting his or her anti-abortion credentials. The leaders of the religious right and the anti-abortion movement have colluded with their conservative Republican favorites by permitting this little deception. They know that as a practical matter, the exception would have little effect.

Thanks to South Dakota’s legislators, who forthrightly outlawed abortion for victims of rape and incest, the old dodge has now been exposed. The passage of their bill has required certain moralizing politicians to contort themselves into comical positions.

Proving his zeal to make himself acceptable to his critics on the religious right, for instance, Mr. McCain authorized the release of a transparently stupid statement to the press. His spokesman said that the Arizona Republican “would have signed the [South Dakota] legislation, but would also take the appropriate steps under state law—in whatever state—to ensure that the exceptions of rape, incest or life of the mother were included.” Signing the legislation, of course, would have outlawed the exceptions.

Presidential ambition is twisting the Senator’s “straight talk” these days, but Mr. McCain isn’t alone in trying to satisfy the religious right without alienating mainstream voters. The Republican governor of South Dakota signed the bill, while simultaneously trying to disown it as something that legislators “chose to do” on their own. Senator John Thune, the South Dakota Republican who unseated Democrat Tom Daschle with anti-abortion rhetoric, promised to “continue to watch [the South Dakota bill] closely as it moves through the courts.” How courageous!

In Washington, the President’s press secretary responded to questions about the bill by noting that it was a “state matter,” and that the President always seeks to build a “culture of life,” except for those fetuses conceived in rape or incest. It would be interesting to hear Mr. Bush articulate the reasoning that led him to that contradictory position.

As we move toward the day of reckoning in the Supreme Court and in state capitals across the country, Americans will have to consider an even harder question. It’s an issue that most abortion opponents do not dare to confront.

Under the South Dakota bill, abortion will become a felony, but only the doctor who performs the procedure is subject to prosecution. The woman who seeks and pays for the operation is not. Yet if abortion equals murder and must be outlawed, then why should doctors but not patients be subject to criminal penalties for participating in an illegal conspiracy?

For anyone who truly believes that terminating a pregnancy is the same as homicide, there can be no moral justification to indict the doctor without prosecuting the patient as well. Such a law denies equal protection to physicians and might well be held unconstitutional—even if there is no right to privacy that shields abortion itself.

It is long past time for Americans to consider these issues with the seriousness they deserve and stop behaving like the politicians who pretend to have it both ways. They should understand that if the religious right wins this struggle, the consequences will be extreme indeed—and there will be no exceptions.

According to the release, the address will be at "Cardoza Law School."

By which the Judiciary Committee member presumably means Cardozo, which is named after a guy who was, after all, a justice of the United States Supreme Court.

Fortunately, the Senate no longer seems quite so inclined to kneel before Mr. Bush, whose power and popularity are now so plainly in decline. Members of both parties seem to be regaining the capacity for independent thought and action that allows them to fulfill their duty and rise above their reputation as a Republican rubber stamp.

As Senators analyze the Alito record, they must also discard the clichés of right-wing propaganda that create illusions and obscure reality.

The President has often said that he opposes “judicial activists” who would legislate from the bench and overturn the popular will. Echoing him, conservatives regularly scold liberals for seeking to win in court what they cannot achieve in Congress. According to this argument, the nomination of Judge Alito is meant to guard against such undemocratic jurisprudence.

Actually, the judge from New Jersey is among the most persistent “activists” currently serving on any federal court—and his confirmation to the Supreme Court might well endanger precedents dating back seven decades. His cavalier attitude toward civil rights and civil liberties, moreover, mocks any pretension to libertarian principle among the conservatives promoting him.

While the Senate Judiciary Committee will explore his thinking in hearings where he can answer for himself, his record doesn’t leave much doubt about his propensity for the Republican brand of judicial activism. Clearly, Judge Alito has few qualms about overturning the will of the majority, as expressed by Congress, if that serves the entrenched power he has so consistently upheld.

As The New York Times reported on Nov. 5, this is a judge who rules in favor of big business so reflexively that even corporate lobbyists publicly describe him as predictable. “He has come down on a host of issues in a way that the business community would prefer,” said Robin Conrad, senior vice president of the National Chamber Litigation Center, the legal arm of the United States Chamber of Commerce. “This is not a guy who is going to go off the reservation.”

Is that a polite way of saying he’s in the tank?

Before the Senate concludes its deliberations on the Alito nomination next January, every American should understand that what is at stake will go far beyond the right to privacy and women’s reproductive freedom, important as those issues are. Aspects of his judicial philosophy may simply sound nutty, including his universally rejected opinion that Congress cannot prohibit citizens from owning machine guns.

But what he seems to desire is a return to the social and economic arrangements of a century ago, when federal judges often sided with economic elites to block legislation that threatened their interests.

In his argument against the machine-gun ban, Judge Alito appealed to the same narrow interpretation of the Constitution’s commerce clause that was used long ago to strike down laws designed to protect labor, consumers, children, women, minorities and the natural environment from the forces of unregulated capitalism. Over the past seven decades, for reasons both humane and pragmatic, the courts have turned away from that cramped perspective and recognized that Congress must have broad latitude to govern the nation as a whole.

On the far right, however, would-be judicial activists have cherished the idea that the Constitution permits them to dispose of any law that conflicts with their ideology. To them, the elevation of Judge Alito evidently represents an opportunity to reverse the progress of decades by judicial fiat (the same sin they attribute to liberals). While other judges have denounced his disdain for legislative intent, that is precisely what the far right admires in him.

Reviving the jurisprudence of the Gilded Age would not only cripple the capacity of Congress to govern the nation as a whole, but would drastically diminish Congressional authority. If for no better reason than their own self-interest, that aspect of Judge Alito’s philosophy ought to engage the interest of the Senators whose job is to interrogate him.

Unlike Justice Clarence Thomas, who ascended to the high court without revealing his extremism, Judge Alito is a known quantity. Republican flacks and other propagandists quickly seconded his nomination with claims that he is well within the “conservative mainstream,” whatever that means. Close analysis of his opinions is likely to reveal that he is in fact to the right of Justice Antonin Scalia, with whom he is so often paired as “Scalito.”

That scarcely qualifies him as mainstream—and may qualify him instead for the ultimate distinction of a filibuster.

Thirty-three years later, it seems, that cheeky line said more about Mr. Alito’s dearest ambitions than the yearbook editors could have known.

Speaking of her son watching and waiting as President George W. Bush mulled over candidates to fill two vacant positions on the Supreme Court bench, Judge Alito’s 90-year-old mother, Rose, confided to reporters in Trenton: “I think he was upset that he didn’t get there in the first shot, that [Harriet] Miers got it.”

Thirty-three years is a long time to wait for something you want that bad.

But to hear some tell it, 35-year-old Noah Feldman has wanted the same thing for just about that long.

“I think Noah got tenure when he was about 2 years old,” said Burt Neuborne, a professor of constitutional law at New York University, which has offered Mr. Feldman tenure. He has offers from Harvard and Yale as well; in addition to three books already published, he has also advised on the Iraqi interim constitution.

Mr. Feldman is a “Little Supreme,” one of a handful of earnest, platinum-résumé’d law geeks whose prospects for the Big Bench are the source of constant speculation among friends and colleagues.

“You fantasize about it, of course. That’s almost part of the fun of it, to fantasize about it,” Mr. Feldman said recently from his Greenwich Village office, when asked whether he’d ever dreamed of warming a seat one day. “That’s just part of the Walter Mitty inner life of someone who loves doing something …. If you’re someone who likes the law, then you’ve got to be someone who imagines that you got a chance to write a Supreme Court opinion.”

Mr. Feldman is hardly the only Little Supreme in town. There are at least a few other young lawyers—professors, assistant U.S. Attorneys, corporate litigators—who have that early Supreme Court buzz about them. Also at N.Y.U., visiting from the University of Michigan, is Richard Primus, 36, an intellectual purebred and constitutional scholar with a pensive, deliberate manner. There is David Schizer, also 36: He’s the youngest dean in the 147-year history of Columbia Law School, an amiable former professor who fell in love with tax law in his early 20’s. And Samuel Rascoff, a vivacious 32-year-old litigation associate at über-firm Wachtell, Lipton, Rosen and Katz, who clerked for Justice David Souter and worked as an assistant to L. Paul Bremer in Iraq. There’s Jennifer Newstead, 36, a thoughtful litigator at Davis, Polk and Wardwell who developed deep Republican ties during her four and a half years working for the administration, most recently as general counsel of the White House’s Office of Management and Budget.

It’s a long, slow, quiet trip to the top. They’re doing all the right things, whether they admit it to themselves or not. And if, like Judge Alito, they’re confiding their fondest dreams to their mothers, they do so to few others.

Rachel Barkow, 34, an associate professor at N.Y.U. Law School, clerked for Justice Antonin Scalia alongside several Little Supremes, serving as the “counter-clerk”—the nickname given to the Democrat he hires to sniff out political biases in his arguments.

“There is this unwritten rule that if they wanted it or thought about it, they wouldn’t say it,” Ms. Barkow said. “It’s that you get a strong impression that that might be a motivating factor—but not the motivating factor—based on some of the choices that people make.”

“The cliché about the Supreme Court is that lightning strikes,” said Mr. Schizer, the young dean. “I think there are some people who do their best to find a lightning rod.”

‘The Ultimate Job Ever’

Like Chief Justice John Roberts and Judge Alito, the Little Supremes tend to have big brains and conservative, future-oriented personalities. They’re under 40, a few years shy of being actual candidates for the lower-court bench, yet old enough to be on the cusp of making partner or getting tenure.

But they seemed older, even in their 20’s. Now in their 30’s, most of them are married, many with children. They wear blazers comfortably—not a lot of beards or nose rings here.

The Little Supremes speak in fully formed paragraphs, with lots of conditional clauses. Conversations with Little Supremes get Jesuitical; their word choice is precise, measured—in a word, judicious. Talking to them can spark feelings of intellectual inadequacy. The Little Supremes are “clarifiers,” able to dissect muddled questions and turn them into the ones they want to answer.

A story about Mr. Feldman’s first day at Yale Law School has him answering a professor’s question with “four points of analysis.”

“I honestly don’t remember it,” Mr. Feldman said of the tale. But he admits that he stood out.

“I definitely think people laughed at me in law school,” he told The Observer in an earlier interview.

The sec wit and Strunk and White sarcasm of newly minted Chief Justice Roberts is the comic coin of their realm.

But some of their behavior has obvious purpose. This is a group for whom the various confirmation scandals—Supreme Court nominee Douglas Ginsburg’s smoke-out and the respective Nannygates of Attorney General hopefuls Zoë Baird and Kimba Wood—were object lessons.

So they don’t do drugs, they don’t take liberties with their taxes, and they pay their household help—and they all seem to have household help—on the books.

Kermit Roosevelt, 34, a Little Supreme who teaches at the University of Pennsylvania Law School, recalled some nervous joking among the pot smokers in his class at Yale Law School. “You can’t do this, because it will come up at your confirmation hearing,” he recalled people commenting at a party. “Which is not to say that I did,” he added.

“I definitely made a decision that at some point I was aware that if you wanted the chance to do public service, it was probably a good idea to follow the law and never smoke pot—so I never did,” said Mr. Feldman.

Mr. Schizer doesn’t even speed. “It took on more of a moral significance to me as I grew up,” he confessed. “I think the only thing I do that’s illegal is I jaywalk, and I’m not even sure that is illegal in Manhattan.”

None of them will admit that they keep such tidy lives because they think they might someday face a confirmation hearing. It flies in the face of reason to plan to become a Supreme Court justice, they said, noting the role of serendipity alongside merit. All of the Little Supremes said that it would be absurd, preposterous, crazy to plan to be on the Supreme Court now, that it would take an unspeakable amount of hubris.

But sometimes this apparent modesty gives one more than a little occasion to reflect, like Hamlet's mother, on the practice of protesting too much. “I’m the guy who gets confirmed when the other guy blows up,” said one Little Supreme—who, like many, was too superstitious to be quoted on the record.

“I can only smile at the premise,” Mr. Primus said, with a smirk. “If you give me $10 right now, I would give you $10,000 if I’m on the Supreme Court. It’s not going to happen.”

“The kinds of people you talked about are the sort of people who woke up on the morning of the Roberts nomination and said, ‘This could be me,’” said one Little Supreme, who would also fit into this category. They “recognized themselves in the career trajectory of John Roberts.”

If anything, the commonalities in the Roberts and Alito nominations—alongside the mangled candidacy of Harriet Miers, whose career path placed her far outside the elite East Coast legal establishment—reinforces the status quo, the narrow corridor of educational background and career pursuits common to many Little Supremes. If it’s not possible to run for the job, it’s also not possible to get it without wanting it.

“It’s like when people say, ‘I’m going to be President.’ I’m not sure what to make of those claims,” said Catherine Sharkey, 35, a self-effacing Little Supreme who teaches tort law at Columbia.

“I think it would be hard to be in certain circles of the legal profession and not fantasize about it,” said another Little Supreme.

Mr. Feldman seconded that view.

“I think every single law student walks into law school, and you’re oriented toward these cases which you read, and a lot of them are written by the Supreme Court—and naturally, you think to yourself: ‘Boy, how neat would it be to do that?’ Similarly, if you’re lucky enough to get a chance to be a law clerk for any judge, you spend a lot of time with these Supreme Court opinions, and naturally you think some of them are wonderful and some of them are not so wonderful, and you’d love nothing better in life than to have the opportunity to do it. But that’s honestly it.”

One 34-year-old Little Supreme, who works for the government in D.C., became a little more forthcoming once The Observer agreed not to print his name.

“Many times people have asked me, ‘What would be your dream job?’ And I’ve always said, ‘Supreme Court justice,’” he admitted. “It’s the ultimate legal job, and it’s the ultimate job ever.”

David Kennedy, 34 (no relation to any of them—in the Senate or on the bench), is an assistant U.S. Attorney in the Southern District of New York.

“I have friends who sort of joke about it; I don’t think they’re predicting,” he said. “I don’t know—maybe they are.

“It’s sort of a weird thing to be told,” he continued, laughing. “Don’t you think?”

One-L

The Little Supremes viewed law school as the entrance into a secular priesthood.

Most came to the law as an extension of an academic venture that they had begun in college, where most studied topics like political theory, philosophy, American government. The law placed a premium on rigorous thought and argumentation, appealing to many Little Supremes with debating backgrounds, and it also seduced those interested in influencing society on the level of ideas.

“I became a lawyer, I suppose, because I unwittingly internalized at a young age Tocqueville’s observation that lawyers are the high priests of American society,” said one Little Supreme grandiloquently. “It was less about Clarence Darrow; it was less about the drama of the courtroom or the legal profession. It was an invitation to a seat at the table at the great American conversation.”

The Little Supremes are interested in public service, and that’s why many of them got into the law. But many have a rarefied view of what that means.

It doesn’t mean working for local candidates, participating in the rough-and-tumble of a campaign, or working as a public defender. They aspire to a significant role in public affairs, but on the level of ideas, or in the federal government, as statesmen, judges, big-picture advisors. In other words, something between the penury and isolation of a purely academic life and managing John Edwards’ campaign.

It starts with the right law school—Harvard, N.Y.U., but most especially Yale—and follows a few very specific paths from there.

According to classmates of theirs from law school, the difference between the Little Supremes and other extremely ambitious law students was the difference between someone who is interested in an appointed position and someone interested in an elected one. Unlike some of the aspiring Senators and governors canvassing law-school campuses—think Bill Clinton at Yale in the early 1970’s, or Cory Booker there in the mid-1990’s—the Little Supremes didn’t shake everyone’s hand or shy away from turning some people off.

Just about the worst thing that you can say about someone in law school is that they were a “gunner”—a catch-all term that can be used to describe someone who won’t share notes, say, or whose arm is locked in the upright position in class discussions, signaling a general readiness to offer “insight.”

The Little Supremes were not typically gunners. They weren’t suck-ups—in part because they tended to view professors as intellectual equals—but they did form close relationships with “famous” professors.

Most didn’t suffer from the need to let everyone know they were the smartest people in the room. Respect is earned quietly—and typically from others who have served with them in the more selective environment of law review—and certainly with a minimum of political fervor. (Wouldn’t want that on the record, would we?)

When exam time came around, it often wasn’t the Little Supremes holding forth on their reading of the establishment clause or grappling with other Big Ideas. They were more engaged by the wonky so-called “plumbing” courses, including those that focused on how the court and government work: federal courts and administrative law. One Little Supreme described the latter as “electrical engineering for lawyers.”

The Path to Power …

If the Little Supremes’ cars are festooned windshield to bumper with stickers from Harvard and Yale and N.Y.U., they’re also covered in names like Kent, Fay and Sears, the names of awards given to top law-school students; Rhodes, Marshall, Knox and Luce, references to the post-college fellowships many of them received; and SCOTUS, a reference to their time clerking on the highest court in the land, an honor like no other in the legal profession.

While only five former Supreme Court clerks in history have returned to the court as justices, three of them now sit on the court.

“The thing about Yale Law School,” said Michael Goldhaber, a member of the class of 1993 who is now the senior international correspondent for The American Lawyer, “is that everybody is competing to a be a Supreme Court clerk, and everybody who wants to be a Supreme Court clerk wants to be a Supreme Court justice. Those two fantasies go hand in hand.”

At N.Y.U., as at other top schools, somewhere between 15 and 40 students with the top grades get special counseling for prime clerkship placements, the goal being to send the top Supreme Court clerkship candidates to “feeder judges,” said Mr. Neuborne.

These are the old kingmakers of an old profession. In the first half of the century, it was Second Circuit Judge Learned Hand; in the 25 years after that, Second Circuit Judge Henry Friendly. At least six of his former clerks are on the federal bench—including Justice Roberts and Judges Pierre Leval, A. Raymond Randolph, Michael Boudin, William Curtis Bryson and Merrick Garland.

The feeder judges tend to be Supremes-in-waiting themselves. These days, some of those judges are political iconoclasts Richard Posner and Alex Kozinski, conservative sparring partners Michael Luttig and J. Harvie Wilkinson III, and Second Circuit Clinton appointees Pierre Leval and Guido Calabresi.

“I think Guido picks winners,” said Mr. Roosevelt, who didn’t get a clerkship offer from Judge Calabresi but did clerk on the D.C. circuit, considered a training ground for Supreme Court justices.

And it’s a betting man’s game. The wildly irreverent, anonymous legal Web log Underneath Their Robes keeps tabs on where feeder-judge clerks end up, and refers to Supreme Court clerks as “members of the Elect.”

Not surprisingly, most Little Supremes cluster in Washington, D.C. After clerking for the court, they are hotly sought after by the law firms with appeals-court practices. Young Federalist Society sympathizers often pick Kirkland and Ellis or Gibson, Dunn and Crutcher; liberals flock to Jenner and Block and Wilmer Cutler Pickering Hale and Dorr; those in between opt for O’Melveny and Myers; Sidley, Austin, Brown and Wood; or Mayer, Brown, Rowe and Maw.

The administration’s legal offices are the real stomping ground for Little Supremes. There are certain high-profile spots in government which ensure that someone will notice how you’re interpreting the Constitution: as one of the U.S. Solicitor General’s 17 attorney assistants, or in the Office of Legal Counsel at the Department of Justice, where Justice Roberts, Judge Alito, Justice Scalia and the late Chief Justice William Rehnquist all worked at some point.

The Little Supremes who work at New York firms have all put in time with the government. Charles Duggan, 37, a former Scalia clerk, just finished a year as associate counsel in the White House counsel’s office, the position that Justice Roberts held in the second Reagan term. Afterward, he went to the litigation department at the Manhattan white-shoe firm Davis, Polk and Wardwell, where he was joined by the aforementioned Ms. Newstead, fresh from her White House job.

… And Its Detours

But another route, the one taken by Mr. Alito, is to become an assistant U.S. Attorney. The Southern District of New York, headquartered in Manhattan, is a prestigious launching pad. Some of the Little Supremes working there are Jesse Furman (Yale Law School, class of 1998) and Michael Scudder (Northwestern University School of Law, class of 1998), both former Supreme Court clerks, and David Anders, 36, the jack-of-all-trades who sent Bernie Ebbers to the Big House.

These are the only Little Supremes likely ever to utter the words, “Ladies and gentlemen of the jury …. ” They’re the scrappiest of the Little Supremes—and, just maybe, have a little more scrapping to do.

“How do I put this?” said Mr. Primus of Mr. Furman, who is a friend of his from law school. “I think he’d probably also be a good building manager or chief financial officer—whatever you put in front of him.” (Mr. Furman declined to comment.)

Then there are the academics. It’s not an obvious place to start.

“To be a successful academic, you have to really have a viewpoint—or several viewpoints,” said Mr. Feldman. “And you have to be willing to wade into very controversial issues and take controversial stands on them in order to advance the debate; that’s why you hold the function in society that you hold.”

It’s telling that the major constitutional scholars on either side—Robert Bork on the right and Larry Tribe on the left—haven’t made it to the Big Bench.

The nomination and confirmation process has been kinder to those academics who have studied administrative law, where the issues tend not to be divided along party lines.

The Little Supremes know this.

“If you really want to be on the Supreme Court,” Mr. Roosevelt said, “you need to make political connections and not express controversial views, and I think I’m not doing very well on either of those.”

That’s why Traci Lovitt, 35, a fireplug appellate lawyer who once argued a case before the Supreme Court when she worked in the Solicitor General’s office, said to count her out.

“I think it is an unfortunate reality today that to be a judge, you cannot hold vehement opinions prior to the nomination and confirmation process,” she said. “You can’t be opinionated. You can’t hold views and be loud and outspoken about them. That is something I would never compromise about myself.”

But who knows? Twenty years from now, that could be a stump speech.

Or not.

“Roberts is very thoughtful, and he’s careful not to commit himself before he’s sure of what he thinks. That’s a quality I admire, and I seek to emulate that,” explained Mr. Schizer, preparing his way to become a stealth nominee. “I think you would find a lot of people who are not quite sure what I think about some issues.”

Mr. Primus let out a deep breath. “I believe that before I die, it’s likely that someone I know will be nominated to the Supreme Court,” he said.

You heard it here first.

Fortunately, the Senate no longer seems quite so inclined to kneel before Mr. Bush, whose power and popularity are now so plainly in decline. Members of both parties seem to be regaining the capacity for independent thought and action that allows them to fulfill their duty and rise above their reputation as a Republican rubber stamp.

As Senators analyze the Alito record, they must also discard the clichés of right-wing propaganda that create illusions and obscure reality.

The President has often said that he opposes “judicial activists” who would legislate from the bench and overturn the popular will. Echoing him, conservatives regularly scold liberals for seeking to win in court what they cannot achieve in Congress. According to this argument, the nomination of Judge Alito is meant to guard against such undemocratic jurisprudence.

Actually, the judge from New Jersey is among the most persistent “activists” currently serving on any federal court—and his confirmation to the Supreme Court might well endanger precedents dating back seven decades. His cavalier attitude toward civil rights and civil liberties, moreover, mocks any pretension to libertarian principle among the conservatives promoting him.

While the Senate Judiciary Committee will explore his thinking in hearings where he can answer for himself, his record doesn’t leave much doubt about his propensity for the Republican brand of judicial activism. Clearly, Judge Alito has few qualms about overturning the will of the majority, as expressed by Congress, if that serves the entrenched power he has so consistently upheld.

As The New York Times reported on Nov. 5, this is a judge who rules in favor of big business so reflexively that even corporate lobbyists publicly describe him as predictable. “He has come down on a host of issues in a way that the business community would prefer,” said Robin Conrad, senior vice president of the National Chamber Litigation Center, the legal arm of the United States Chamber of Commerce. “This is not a guy who is going to go off the reservation.”

Is that a polite way of saying he’s in the tank?

Before the Senate concludes its deliberations on the Alito nomination next January, every American should understand that what is at stake will go far beyond the right to privacy and women’s reproductive freedom, important as those issues are. Aspects of his judicial philosophy may simply sound nutty, including his universally rejected opinion that Congress cannot prohibit citizens from owning machine guns.

But what he seems to desire is a return to the social and economic arrangements of a century ago, when federal judges often sided with economic elites to block legislation that threatened their interests.

In his argument against the machine-gun ban, Judge Alito appealed to the same narrow interpretation of the Constitution’s commerce clause that was used long ago to strike down laws designed to protect labor, consumers, children, women, minorities and the natural environment from the forces of unregulated capitalism. Over the past seven decades, for reasons both humane and pragmatic, the courts have turned away from that cramped perspective and recognized that Congress must have broad latitude to govern the nation as a whole.

On the far right, however, would-be judicial activists have cherished the idea that the Constitution permits them to dispose of any law that conflicts with their ideology. To them, the elevation of Judge Alito evidently represents an opportunity to reverse the progress of decades by judicial fiat (the same sin they attribute to liberals). While other judges have denounced his disdain for legislative intent, that is precisely what the far right admires in him.

Reviving the jurisprudence of the Gilded Age would not only cripple the capacity of Congress to govern the nation as a whole, but would drastically diminish Congressional authority. If for no better reason than their own self-interest, that aspect of Judge Alito’s philosophy ought to engage the interest of the Senators whose job is to interrogate him.

Unlike Justice Clarence Thomas, who ascended to the high court without revealing his extremism, Judge Alito is a known quantity. Republican flacks and other propagandists quickly seconded his nomination with claims that he is well within the “conservative mainstream,” whatever that means. Close analysis of his opinions is likely to reveal that he is in fact to the right of Justice Antonin Scalia, with whom he is so often paired as “Scalito.”

That scarcely qualifies him as mainstream—and may qualify him instead for the ultimate distinction of a filibuster.