If we look to the future and take seriously the positions and principles that the five living-constitutionalists have already adopted, the Court, as it is now composed, may very well have five votes for, say, the imposition of a federal constitutional right to same-sex marriage, five votes for stripping “under God” out of the Pledge of Allegiance and for complete secularization of the public square, five votes for continuing to abolish the death penalty on the installment plan, five votes for selectively importing into the Court’s interpretation of the American Constitution the favored policies of Europe’s leftist elites, five votes for further judicial micromanagement of the government’s war powers, and five votes for the invention of a constitutional right to human cloning.
2. There’s no solace in the prospect that Obama would likely be replacing only liberal justices during his first term. First, as the examples in the preceding paragraph show, the Court as currently composed threatens further incursions on the realm of representative government. The Court urgently needs to be improved. Second, it’s a foolish bet to rely on probabilities. One never knows when a good justice will step down or die.
Third, the Left sees even President Clinton’s appointees, Ginsburg and Breyer, as too mild and moderate. Obama’s supporters are clamoring for “liberal lions” who will redefine the Constitution as a left-wing goodies bag, and a look at some of their leading contenders, like Yale law school dean Harold Koh (champion of judicial transnationalism and transgenderism), Massaschusetts governor Deval Patrick (a racialist extremist and judicial supremacist), and law professor Cass Sunstein (advocate of judicial invention of a “second Bill of Rights” on welfare, employment, and other Nanny State mandates), shows that there is lots of room for Obama’s nominees to be even worse than Ginsburg and Breyer. And no matter how bad they are, you can count on their being confirmed by a heavily Democratic Senate. Obama’s own record and rhetoric (which I discuss more fully in this essay) make clear that he will seek left-wing judicial activists who will indulge their passions, not justices who will make their rulings with dispassion.
Fourth, the next president will be the odds-on favorite to be re-elected in 2012. Over the next two presidential terms, a single president could well replace five or six justices. If a President Obama replaces Justice Scalia (who will be 80 in 2016), the resulting Court would have six votes for all sorts of constitutional mayhem. If he replaces Justice Kennedy (also 80 in 2016), the pivotal vote on the Court will move even further left.
3. I hope very much that a President McCain appoints justices who will help to overturn Roe v. Wade, and although it won’t be easy to get good nominees confirmed by a heavily Democratic Senate, I think that it’s definitely possible. Overturning Roe, of course, wouldn’t make abortion illegal. Rather, it would restore to the citizens of each state the power to establish abortion policy through their elected representatives — and to revisit that policy over time. That’s the system our Constitution established, and it’s the system that all citizens faithful to our Constitution should welcome. The democratic processes may at times be messy and contentious, but they offer the only real hope of working out a consensus on abortion policy.
Roe v. Wade has corrupted and distorted American politics and Supreme Court decisionmaking for 35 years. All Americans, irrespective of their positions on abortion policy, should welcome its long-overdue demise.
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With its five living-constitutionalists, the Supreme Court is well to the left of the American public and threatens to engage in yet more wild acts of liberal judicial activism. The Court urgently needs to be transformed into an institution that practices judicial restraint. If Barack Obama is elected president, he will drive the Court further in the wrong direction, and the liberal judicial activists that he appoints will likely serve for two or three decades. Our system of representative government, already under siege, would be lucky to survive an Obama presidency.
– Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog. The views he expresses here are his own only and are not to be imputed to EPPC.