Obama and the Supreme Court

Published October 29, 2008

National Review Online

If America's citizens care to wake up and pay attention before they elect as president a sweet-talking, moderate-posing left-wing ideologue with a history of alliances with anti-American radicals, one of the several matters they ought to think seriously about is the future of the Supreme Court. Simply put, the survival of the historic American experiment in representative government will be in serious jeopardy if Barack Obama is our next president.

Our Constitution establishes a constitutional republic, a system in which, within the broad bounds that the Constitution sets forth, policy issues are to be determined by American citizens through their elected representatives at the state (including local) and national levels. The great battle over the Supreme Court in recent decades is between the proponents of original meaning and judicial restraint, on the one hand, and judicial activists, or advocates of living constitutionalism, on the other. Proponents of original meaning and judicial restraint embrace an interpretive methodology that respects the vast realm of representative government. Advocates of judicial activism and living constitutionalism, by contrast, redefine the Constitution to mean whatever they wish it to mean. They willy-nilly invent rights that aren't in the Constitution and ignore those that are. Theirs is a philosophy of government by judiciary, with the operations of representative government confined to those matters that the justices aren't quite ready yet to take charge of or that they think don't matter very much.

If you've been paying attention to the media's scant coverage of the impact of the presidential election on the Supreme Court, you've been hearing that we currently have either a “conservative” Court or a Court delicately balanced between its “liberal” and “conservative” wings. Electing Obama as president is unlikely to change anything, you're told, because he'd probably just be replacing liberal justices. The real threat, Obama himself tells us, is that John McCain would appoint justices who would vote to overturn Roe v. Wade and thereby (supposedly) make abortion illegal.

Wrong on all counts.

1. For starters, if we are to use crude political terms, the current Supreme Court is markedly to the left of the American public. The Court has a working majority of five living-constitutionalists. Four of them — Stevens, Souter, Ginsburg, and Breyer — consistently engage in liberal judicial activism, and a fifth, Kennedy, frequently does.

For evidence of how liberal the current Court is, consider the biggest cases of last term. In Boumediene v. Bush, the Court ruled 5-4 (with the five living-constitutionalists in the majority) that aliens detained by the U.S. military abroad as enemy combatants have a constitutional habeas right to challenge their detention in American courts. In so ruling, the Court struck down the statutory framework that Congress and the President had crafted. I'll set aside here an extended discussion of how wildly wrong the Court's ruling was. For present purposes — i.e., showing that the Court is well to the left of the American public — I'll simply note the public's strong disapproval of it (by a margin of 61-34 in a Washington Post poll).

In Kennedy v. Louisiana, the same five justices formed the majority that ruled that the death penalty for the crime of raping a child always violates the Eighth Amendment — “no matter,” as Justice Alito put it in his dissent, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator's prior criminal record may be.” Again, let's set aside how badly reasoned the majority opinion was. Even Barack Obama recognized how poorly the majority opinion reflected the public consensus that it purported to determine, as he rushed to assert his disagreement with the Court. A Court to the left of where Barack Obama claims to be on a telltale case like this cannot be described as conservative or moderate.

Finally, consider by contrast the one big “conservative” victory of the term, the recognition of individual Second Amendment rights in District of Columbia v. Heller. This decision was so popular with the public that Barack Obama tried to make it appear that he agreed with it.

Let me be clear: I am not arguing that public approval is the measure of whether a ruling is correct or not. On the contrary, it has no bearing on that important question. Rather, I am using it here only for its bearing on the very different question whether the Court, in crude political terms, is liberal or conservative.

If we look to the future and take seriously the positions and principles that the five living-constitutionalists have already adopted, the Court, as it is now composed, may very well have five votes for, say, the imposition of a federal constitutional right to same-sex marriage, five votes for stripping “under God” out of the Pledge of Allegiance and for complete secularization of the public square, five votes for continuing to abolish the death penalty on the installment plan, five votes for selectively importing into the Court's interpretation of the American Constitution the favored policies of Europe's leftist elites, five votes for further judicial micromanagement of the government's war powers, and five votes for the invention of a constitutional right to human cloning.

2. There's no solace in the prospect that Obama would likely be replacing only liberal justices during his first term. First, as the examples in the preceding paragraph show, the Court as currently composed threatens further incursions on the realm of representative government. The Court urgently needs to be improved. Second, it's a foolish bet to rely on probabilities. One never knows when a good justice will step down or die.

Third, the Left sees even President Clinton's appointees, Ginsburg and Breyer, as too mild and moderate. Obama's supporters are clamoring for “liberal lions” who will redefine the Constitution as a left-wing goodies bag, and a look at some of their leading contenders, like Yale law school dean Harold Koh (champion of judicial transnationalism and transgenderism), Massaschusetts governor Deval Patrick (a racialist extremist and judicial supremacist), and law professor Cass Sunstein (advocate of judicial invention of a “second Bill of Rights” on welfare, employment, and other Nanny State mandates), shows that there is lots of room for Obama's nominees to be even worse than Ginsburg and Breyer. And no matter how bad they are, you can count on their being confirmed by a heavily Democratic Senate. Obama's own record and rhetoric (which I discuss more fully in this essay) make cl
ear that he will seek left-wing judicial activists who will indulge their passions, not justices who will make their rulings with dispassion.

Fourth, the next president will be the odds-on favorite to be re-elected in 2012. Over the next two presidential terms, a single president could well replace five or six justices. If a President Obama replaces Justice Scalia (who will be 80 in 2016), the resulting Court would have six votes for all sorts of constitutional mayhem. If he replaces Justice Kennedy (also 80 in 2016), the pivotal vote on the Court will move even further left.

3. I hope very much that a President McCain appoints justices who will help to overturn Roe v. Wade, and although it won't be easy to get good nominees confirmed by a heavily Democratic Senate, I think that it's definitely possible. Overturning Roe, of course, wouldn't make abortion illegal. Rather, it would restore to the citizens of each state the power to establish abortion policy through their elected representatives — and to revisit that policy over time. That's the system our Constitution established, and it's the system that all citizens faithful to our Constitution should welcome. The democratic processes may at times be messy and contentious, but they offer the only real hope of working out a consensus on abortion policy.

Roe v. Wade has corrupted and distorted American politics and Supreme Court decisionmaking for 35 years. All Americans, irrespective of their positions on abortion policy, should welcome its long-overdue demise.

* * *

With its five living-constitutionalists, the Supreme Court is well to the left of the American public and threatens to engage in yet more wild acts of liberal judicial activism. The Court urgently needs to be transformed into an institution that practices judicial restraint. If Barack Obama is elected president, he will drive the Court further in the wrong direction, and the liberal judicial activists that he appoints will likely serve for two or three decades. Our system of representative government, already under siege, would be lucky to survive an Obama presidency. 

— Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO's “Bench Memos” blog. The views he expresses here are his own only and are not to be imputed to EPPC.

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