Bench Memos

Re: Pimping the Constitution

I’d like to offer a few follow-up points on Matt’s excellent post about yesterday’s Washington Post article on what leftist activists want in Obama appointees to the Supreme Court:


1.  It’s odd that the article never goes beyond the use, or misuse, of crude political labels to convey to the reader a bigger picture of the sorts of issues that Obama appointees would be deciding.  As I’ve stated (drawing on Stuart Taylor’s own analysis):


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. 


2.   The Post article asserts that “any openings presented to the next president are almost sure to come from within the court’s liberal wing.”  (Emphasis added.)  That strikes me as quite an overstatement:  “likely” is far more defensible than “almost sure”, and even that modified proposition ignores the probability (which Barack Obama seems to be taking for granted) that the next president would serve two terms.  It would be folly for any citizen who cares about the Court to assume that Justice Scalia or swing-Justice Kennedy will be on the Court in 2017.  


3.  The Post article paraphrases law professor Geoffrey Stone (whose rantings I’ve commented on here, here and here, including links within those posts):  “Stone notes, as he said Stevens has, that every justice on the current court with the exception of Ginsburg is more conservative than the justice he replaced.”  But what the article accepts as fact (“Stone notes …”) is highly contestable.  What evidence is there at this point that Chief Justice Roberts is “more conservative” than Chief Justice Rehnquist?  On the hot-button issue of abortion, for example, the evidence is to the contrary:  Rehnquist expressly called for overturning Roe and restoring abortion policy to the democratic processes.  Although I very much hope that Roberts will adopt that genuinely moderate position, he hasn’t done so yet. 


Is Justice Kennedy really “more conservative” than Justice Powell?  What’s the evidence?  Here’s some contrary evidence:  On homosexual sodomy, Powell joined the Court’s 1986 ruling in Bowers v. Hardwick, which Kennedy’s 2003 opinion in Lawrence v. Texas overruled.  (Yes, I know that Powell was later quoted as regretting his vote, but we’re comparing actual records.) 


As for Stone’s statement that Justice Stevens has made the same assertion:  Ah, yes, that would be the same Stevens who describes himself as a “judicial conservative”. 


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