Under John Roberts, Court Re-Rights Itself

To a significant degree, this agenda has become a victim of its own success. Led in no small part by the court, the nation has placed itself indelibly on record as aspiring to a society in which people of both sexes and various races, ethnicities and religious groups receive equal treatment under law. But to the extent that we are not yet one nation -- one people -- all equal in rights and opportunities, progressives will now have to turn to forums other than the court for further progress.

And the same holds true for the second initiative -- the "civil liberties" agenda, whereby progressives sought to expand the constitutional rights of individuals, including criminal suspects, against the power of the state. With a conservative court presiding in this age of terrorism, the real question is not what gains progressives may make in this area, but how much ground they will lose.

The challenge for progressives, then, is twofold. The first is to wean themselves off what has become an excessive reliance on the judicial branch to achieve their social and political goals. Progressives will now have to win their battles in the political arena.

Second, progressives need to consider whether they can make common cause with some conservatives. Such a potential agenda does exist. Call it the "accountability agenda," focused on greater transparency in government and on enforcing the checks and balances at the Constitution's structural core.

Conservatives of a more libertarian stripe are as concerned as progressives about overreaching claims of unreviewable executive authority, as the decisions rebuffing the Bush administration's policies on enemy combatants have already shown. Both progressive and conservative judicial philosophies can embrace a judicial role in policing the limits of governmental power and in making our democratic processes more robust.

The lesson for progressives of the court term that just ended is that a rare triumphant chapter in judicial history has come to a definitive close, and that they will have to think differently and creatively if the next chapter is to be something other than tragedy.

Edward Lazarus is the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."