In this New Republic Online essay, Ben Wittes, after lavishing deserved praise on Jan Crawford Greenburg’s Supreme Conflict, takes issue with her argument that the Roberts and Alito appointments have produced (in Greenburg’s words) “a profound and lasting alteration to the Supreme Court.” Some details aside, I’m in basic agreement with Wittes. Among other things, “conservatism, even very deep conservatism, can coexist with a relative caution about upsetting the apple cart blithely” (i.e., overturning well-established precedent), and “[p]rofound change also requires at least one more vote.”
For understandable political reasons, the Left is eager to overstate the number of wrongly decided cases that judicial conservatives believe need overruling, and there is also considerable disagreement among judicial conservatives on the question (with some academics, not surprisingly, being most purist). My own sense is that the modest steps of restoring abortion policy to the democratic processes (which is all that “overturning” Roe v. Wade would entail) and interpreting the Establishment Clause in a manner consistent with this country’s traditions would go very far towards satisfying the political coalitions behind judicial conservatism. By contrast, virtually no one deeply cares, say, about reversing wrong rulings like Griswold v. Connecticut (which involved an anti-contraception law that was not being enforced), about de-incorporating the Establishment Clause against the states, or about undoing the New Deal. And paper money is also here to stay.
An enduring problem with many activist precedents is that they have the potential, in the hands of an activist court, to produce activist extensions, logical or otherwise. If and when we have a Supreme Court that is clearly committed to principles of judicial restraint—and that may take eight to ten more years of strong appointments—then that danger becomes much less severe.