In the new issue of the National Journal, Stuart Taylor has a cover story that addresses what the next presidential election may mean for the Supreme Court. As usual, Taylor is worth reading and offers thoughtful, balanced insights. That said, there are some key respects in which I find his article disappointing:
1. Taylor relies heavily on “admittedly imperfect labels” like “liberal”, “conservative”, “sharply to the right”, and “sharply to the left”—labels that obscure the more important divide between judicial activism (of any political stripe) and judicial restraint. Purely political labels are, I concede, convenient shorthands. But they deserve to be fleshed out. It was just a few weeks ago, in his column summarizing the Court’s last term, that Taylor himself made an eloquent pitch for judicial restraint and against “judicial imperialism”. His cover story would have been much better if he had carefully explored these concepts.
2. Relatedly, Taylor asserts that the “politically charged cases on which the justices are closely divided … happen to split 4-4, with considerable consistency, along lines corresponding to liberal and conservative policy outcomes.” This assertion (which Taylor also made in his end-of-term column) obscures the divide between those justices who would defer to democratic enactments and those who would override them. (This divide is related to, but not synonymous with, the divide between judicial restraint and judicial activism, as it is not activist to override democratic enactments that in fact violate a constitutional guarantee.) In some cases the “liberal” justices are on the deferential side of the divide, but in most cases the “conservative” justices are.
3. Taylor presents the “liberal nightmare” version of how McCain appointees might affect the Court as well as the “conservative nightmare” version of how Obama appointees might affect it. It’s telling that the top three items in the “liberal nightmare” version, and at least six of the ten items listed, involve the Court’s deferring to democratic enactments. By contrast, at least ten of the twelve items in the “conservative nightmare” version involve the Court’s striking down democratic enactments. Thus, the lesson that Taylor could have drawn, had he moved beyond his political labels, is that the conservative fear is that Obama appointees would engage in liberal judicial activism and the liberal fear is that McCain appointees would defer too much to democratic enactments.
4. Taylor also fails to explore how much the Court, as currently composed, threatens to fulfill either the liberal or the conservative nightmare. I don’t claim that it’s always easy to predict when Justice Kennedy will join with the four reliable votes for liberal activist results, but (drawing on Taylor’s list) conservatives reasonably fear that there may already be five votes on the Court for judicial imposition of a constitutional right to same-sex marriage, for stripping “under God” out of the Pledge of Allegiance, for banning the death penalty (on the installment plan), for expanding judicial micromanagement of national-security matters, and for a constitutional right to human cloning. By contrast, there are at most a couple lesser items on the liberal-nightmare list that liberals might reasonably fear from the current Court.
In other words, Americans concerned about their powers of democratic self-government need to elect John McCain not merely to make progress on the conservative wish-list for the Court but also to avoid the nightmare scenarios that the current Court already threatens.