Obama Is (Supreme) Courting Disaster

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.