August 18, 2004, 8:29 a.m.
Extreme Supreme
A Kerry Court would be way left.

By Walter M. Weber

It is a political reality nowadays that the courts, and in particular the U.S. Supreme Court, trump the democratic process. Regardless of whether the Framers of the Constitution intended it to be so or not, we live in a de facto judge-run oligarchy. No number of laws — or votes — can overcome a court bent on enforcing its own views in the name of federal (or state) "constitutional rights."

Liberals know this. They also know that the core of their political agenda will rarely, if ever, command majoritarian support. Thus, stocking the bench with liberal judges and justices is absolutely essential to liberals.

And so we hear endless liberal moaning about what would happen should President Bush have the opportunity to appoint one or more Supreme Court justices.

Well, as a matter of fact, almost nothing would change under a second Bush term. The member of the Court most likely to retire is Chief Justice William Rehnquist, a strong conservative, and it is hard to see how his replacement could shift the Court to the right. Moreover, a solid majority of the U.S. Senate has made it clear that only over their dead bodies will any conservative justices win confirmation. So a second Bush term would likely see More of the Same.

But what if Sen. John Kerry captures the presidency? What if this committed liberal Democrat gets to pick Rehnquist's replacement?

The current Supreme Court is split into three camps. There are four dependable liberals (John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer), three dependable conservatives (Rehnquist, Antonin Scalia, and Clarence Thomas), and two unpredictable swing votes (Sandra Day O'Connor and Anthony Kennedy). Replacing Rehnquist with another dependable liberal — as a President Kerry would certainly do — would give the liberal bloc a stranglehold on the Court.

That would mean the complete victory of the liberal agenda. For example:

No more vouchers for use in religious schools: Vouchers that needy parents can use to send their children to private religious schools escaped constitutional death in the Supreme Court by the barest of margins, 5-4. A liberal replacement for Rehnquist would flip the balance.

Homosexual Boy Scout Leaders: The last time around, the Boy Scouts squeaked by with a 5-4 ruling saying they did not have to admit openly homosexual scout leaders. Say goodbye to the Scouts if Kerry gets to select Rehnquist's replacement.

Unlimited federal-government power: A slim 5-4 majority in a string of cases has enforced some modest limits on federal power under the Commerce Clause, the Tenth Amendment, and the Eleventh Amendment. Even those few limits would evaporate under a Kerry-picked Court.

Same-sex marriage and homosexuals in the military: There are already five or six pro-homosexual votes on the Supreme Court, as evidenced by the Court's 6-3 invalidation of a homosexual-sodomy statute in Lawrence v. Texas. Add another liberal and you can bank on total victory for the homosexual agenda.

Abortion on demand: There are already five votes for even the most extreme forms of abortion, such as partial-birth abortion. Put a Kerry appointee in for Rehnquist, and it won't matter whether Justice O'Connor changes her mind.

"Under God" in the Pledge: The Court recently dodged the constitutionality of the phrase "under God" in the Pledge of Allegiance, so this remains a live issue. And while swing-vote Justice O'Connor indicated she would uphold the pledge, her vote would be irrelevant if a fifth liberal were added to the four current "strict separationists."

Farewell Christmas crèches and Ten Commandments displays: These displays are up for grabs in the current Supreme Court. Let Kerry put a fifth "strict separationist" on the Court, and all government acknowledgment of religion is likely dead on arrival.

Liberals are understandably salivating at the prospect of a Kerry administration. Win that, and they win the Supreme Court. Win the Court, and they win control of the country.

All in favor, say "aye." All opposed — well, your votes won't matter anyway.

— Walter Weber is a lawyer in Washington, D.C. This piece is written in his capacity as a private attorney and does not necessarily reflect the views of his employer.

*   *   *

YOU’RE NOT A SUBSCRIBER TO NATIONAL REVIEW? Sign up right now! It’s easy: Subscribe to National Review here, or to the digital version of the magazine here. You can even order a subscription as a gift: print or digital!