In tomorrow’s New York Times, Linda Greenhouse’s summary of the Court’s term begins: “It was the Supreme Court that conservatives had long yearned for and that liberals feared.” Well, I’ve certainly never yearned for—and no conservative should yearn for—a Supreme Court in which Justice Kennedy provides the decisive vote.
The modest victories this past term shouldn’t lead conservatives to become complacent. Improving the composition of the Court is very much a work in progress and will require that the next several appointments be strong. That means, among other things, having the right president elected in 2008.
My own mantra is “One down, five to go.” By which I mean: Six justices on the Court in 2005 had signed their name (in Planned Parenthood v. Casey or in Lawrence v. Texas or in both) to the absurd proposition that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As those six justices have amply shown through their decisionmaking, that “mystery” declaration is nothing less than a claim of unconstrained power to define for all Americans which particular interests those justices think should be beyond the bounds of citizens to address through legislation. One of those six justices (O’Connor) has left the Court, but five more (Stevens, Kennedy, Souter, Ginsburg, and Breyer) remain. I yearn for, and will continue to work for, a Court that has no justices who embrace the “mystery” passage and the illegitimate decisionmaking that it signals.