Bench Memos

Missing the Big Picture

The essays by Dahlia Lithwick and Jeffrey Rosen that I’ve critiqued today present radically divergent views of the threats supposedly posed by the Supreme Court. To Lithwick, the threat is that conservative justices will “sideline themselves” and “refrain from second-guessing the other branches of government” on a broad range of matters. To Rosen, the threat is that conservative justices won’t let Congress and the president “pass the laws that the American people expect” — that the justices, in other words, will second-guess the other branches of government on a broad range of matters — and will “roll back progressive reforms.”


What Lithwick and Rosen have in common is that, purposefully or otherwise, they divert attention from what is really at stake for American citizens in which president selects the next Supreme Court justices. As Stuart Taylor has put it (in an essay now available, I believe, only to National Journal subscribers), Supreme Court picks by a President Obama would present a real threat (in Taylor’s words) of further “displacing democratic choices with made-up constitutional law” and of “strangulation” of representative government:

Based on the wish lists published by liberal judges and law professors, justices who fit Obama’s description [of his model appointee] might well invent federal constitutional rights not only to gay marriage but also to Medicaid abortions, physician-assisted suicide, human cloning, and perhaps free medical care, food, and housing for poor people; strike down the death penalty (as Stevens recently advocated) and laws making English the official language; ban publicly funded vouchers for poor kids to attend parochial schools; bless ever-more-aggressive use of racial and gender preferences; and more.

In other words, a meaningful “user’s guide” (to borrow Lithwick’s overly consumerist term) for voters this fall would be:


If you want justices who will invent a constitutional right to same-sex marriage, vote for Barack Obama.


If you want justices who favor partial-birth abortion and taxpayer funding of abortion, vote for Barack Obama.


If you want justices who will give foreign terrorists constitutional rights, vote for Barack Obama.


If you want justices who will strip God out of the Pledge of Allegiance and religion out of the public square, vote for Barack Obama.


If you want justices who will protect child pornographers and child rapists, vote for Barack Obama.


By contrast, Supreme Court picks by a President McCain hold out what great threats in the eyes of the Left? The prospect that abortion policy will finally be restored to the democratic processes, where the Constitution leaves it. The prospect that national security will be the province of the president and Congress. And, more generally, the prospect that the Court won’t, without a legitimate basis in the Constitution, be striking down legislative enactments by Congress and the states.

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