In a Washington Post op-ed today aptly titled “The next Supreme Court pick matters less than you think,” Georgetown law professor David Cole argues that “history suggests” that “major changes in existing constitutional doctrine” “will come more from the sustained work of committed citizens than from the appointment of a new justice.”
Somehow Cole’s proposition that over the past four decades a supposedly conservative Court “has overruled relatively few liberal constitutional precedents” seems to me to have very little value in predicting the damage that a Court with an entrenched liberal majority would do to the Constitution and to perceived conservative precedents. Indeed, the liberal living-constitutionalist premises that pervade his argument—e.g., “Constitutional law reflects what we as a society deem to be our most fundamental values, and those values evolve”—are so malleable that they provide no brake at all on what a liberal majority would do.
Cole, I’ll note (though he and the Post don’t), is married to hard-Left judicial activist Cornelia Pillard of the D.C. Circuit, who is viewed in progressive circles as a dream Supreme Court candidate. As one reader has written me about his op-ed:
Translation: it will be okay when Hillary picks my wife, because she will only do bats*** crazy things when she believes the country is ready for them.