With all the fuss these days by conservatives that President Barack Obama is running up the national debt on wasteful spending programs, nationalizing the banking and health care sectors, and reversing the anti-terror policies that have prevented a repeat of 9/11, a potentially greater calamity has been relegated to the back burner: the appointment of Supreme Court justices.
Over the next four to eight years, President Obama is likely to make at least two appointments to the Supreme Court. Three appointments would not be surprising. Four or five, though unlikely, is not unthinkable. The most likely scenario is that he will replace Justices Ginsburg, Souter, and Stevens, thus shoring up the liberal wing of the court for a generation. However, it would not fundamentally alter the court’s ideological balance. Rather, the doomsday scenario will occur if, God forbid, one of the five non-liberal justices dies or is forced to retire due to ill health.
Ideologues are quick to lampoon the Supreme Court as being, alternatively, in the grip of an activist left-wing ideology or a “right-wing headlock” as Secretary of State Hillary Clinton put it at the Democratic convention this past summer. In fact, both assertions are incorrect. Since the arrival of President Nixon’s appointees, the Supreme Court has been without a clear ideological majority. On certain issues a majority exists, but neither the left nor the right has been able to fundamentally shape the law. However, during the past 30 years, liberal constitutional thinking has expanded to encompass many more issues once thought to be beyond the reach of judicial review, and now includes an even greater conception of judicial power than the Warren Court. The most dangerous among these ideas is the extraterritoriality of constitutional law, which would allow the judiciary to micromanage American military operations across the globe. But there would be other consequences as well.
All law school students have heard a constitutional law professor explain that the concept of a “living Constitution” is superior to the discredited theory of “originalism” advocated by Justices Scalia and Thomas. The argument most often advanced to support this assertion is that the living Constitution expands our freedom by finding new constitutional rights. But while jurists appealing to the living Constitution have discovered additional rights — often by usurping the prerogatives of the democratic process — they have also been alarmingly willing to contract or eliminate many of the rights for which the constitution explicitly provides.
For example, the Fifth Amendment provides that the power of eminent domain can be exercised for “public use,” but a 5-4 majority found in the infamous Kelo case that appropriating property on behalf of a private developer was constitutional. Free speech rights have also withered under the living constitution, such as management’s ability to discuss the consequences of unionization during organizing elections and the right to protest outside abortion clinics. The Supreme Court has even acquiesced in curtailing citizens’ rights to participate in the democratic process by upholding limits on candidate advocacy 60 days before a general election (30 days for a primary). The Equal Protection Clause — the product of a gruesome and costly civil war — was found not to apply to higher education because it was outweighed by the universities’ compelling interest in diversity, a term that is not mentioned anywhere in the Constitution.
Other rights hang in the balance by a single vote. These include the right to exclude members from private organizations based on religious convictions (think Boy Scouts); the right of private groups to run issue advertisements before elections even if they do not explicitly call for the election or the defeat of a candidate; and the right to possess a firearm in your own dwelling. A fifth liberal justice would eliminate these rights by finding that they are “balanced” by various extra-constitutional considerations.
There is also the matter of state powers, or federalism, oftentimes mislabeled “states’ rights.” The Framers of the Constitution believed that the problem of federal encroachment on the states’ reserves powers (which are all those powers not delegated to Congress or expressly taken away from the states by the Constitution) was serious enough to warrant its own amendment: the Tenth. But with an additional liberal vote, the Tenth Amendment would become a dead letter. Practically, this would signal the end of states’ ability to impose the death penalty, insist upon opposite sex marriage, or deny benefits to illegal aliens.
And then there is the notion of “positive rights,” which briefly flared up during the presidential campaign when a few conservative bloggers discovered an NPR interview with then-Professor Obama where he bemoaned the fact that the Supreme Court has taken a dim view towards redistributing wealth. So in addition to our foreign policy, an ideologically liberal court may well set domestic economic policies as well.
On each of these issues above, there is every indication that President Obama will appoint down the line liberal ideologues. As a constitutional law professor, Obama wrote exam questions pushing the envelope on gay marriage when the issue was just beginning to percolate in the ’90s. He was one of 22 Democratic senators (a bare minority of the caucus) who voted against the confirmation of Chief Justice Roberts, and one of 25 who took the extraordinary step of attempting to filibuster the nomination of Justice Alito. During the Democratic primary, Obama opined that his judicial nominees would have “heart” and “empathy” to understand the plight of various Democratic voting blocs, such as “single women,” “African-Americans,” “gays,” the “disabled,” and the “old.” But deciding cases based on which party best evokes the judge’s empathy mocks the notion of a written Constitution and the rule of law.
When President Obama campaigned as a national healer who would leave the divisive politics of social issues at the door, he meant what he said. Sort of. The practical effect of an ideologically liberal court would be to permanently wrest all social issues from the voting public by constitutionalizing the cultural opinions of the liberal elite, thus enabling liberal politicians to avoid taking unpopular stands on these issues. While they may personally disagree with the court’s decisions, they will tell us there is nothing we can do about it because the court has spoken. A preview of this came during the campaign when Obama professed to disagree with the Supreme Court’s holding that it was unconstitutional to execute child molesters, even though opposition to the death penalty is a cardinal belief shared by all the liberal legal luminaries whom Obama will consider for appointment.
Like many conservative lawyers, I never thought I’d say this, but it is time to pray that Justice Kennedy enjoys an extended tenure on the Supreme Court, or at least for four more years.