The Supreme Court has had a working conservative majority for over a quarter-century, cemented by the appointments of Chief Justice John Roberts and Justice Samuel Alito. In that time, we've witnessed evolution, not revolution, with few precedents overturned.
Indeed, the Court under Chief Justice William Rehnquist strengthened the jurisprudential foundation of Roe v. Wade, even as it expanded the permissible scope of abortion restrictions. And it re-affirmed the Miranda decision, a prime example of Warren-era judicial legislation.
At the same time, the conservative Court strengthened private property rights and limits on government power. Unlike past liberal courts, those decisions have evoked little public outcry because they are consistent with the Constitution's text and intent. Nor have the Court's conservatives voted in anything resembling lock-step fashion.
By contrast, the Court's four-member liberal bloc is far more cohesive and adheres firmly to the largely discredited jurisprudence of the 1960s and '70s. All four liberal justices dissented on decisions striking down the District of Columbia's handgun ban, upholding school choice and invalidating a state's attempt to force the Boy Scouts to allow gay Scoutmasters.
All four were in the majority in the infamous Kelo decision approving the use of eminent domain for private gain, and also in the decision upholding racial preferences at the University of Michigan (voting to approve even the explicit quotas that were struck down). All four recognize virtually unlimited federal power under the Commerce Clause while taking a dim view of the powers of states in our system of federalism.
Like many issues, the differences between the candidates are not stark but nuanced. Sen. John McCain was part of the so-called Gang of 14, a bipartisan coalition reviled by many conservatives that steered a centrist course on judicial nominations. He has promised to appoint conservative justices but an overwhelmingly Democratic Senate likely would temper such impulses.
Sen. Barack Obama has both praised and scorned President George W. Bush's nominees, but he has emphasized qualities such as empathy and real-world experience as opposed to fidelity to the rule of law in suggesting how he would select judges. President Bill Clinton's two appointees were extolled as judicial moderates but have proven reliably liberal, while the seven justices appointed by Republican presidents span the spectrum from liberal to conservative.
Whoever is elected president would do well to notice that liberal hysteria over judicial nominations has gained little traction with the public, presumably because conservative courts generally do not engage in the type of judicial lawmaking that gives courts a bad name. By contrast, the Warren Court's excesses sparked a popular backlash that helped elect Richard Nixon and Ronald Reagan.
But without question the Court is at a tipping point, with a moderately conservative majority juxtaposed against a very liberal minority. If that balance tips to left, it will imperil many of our precious freedoms. Liberals like to say they want a "living Constitution," but when they control the courts, the result appears more like a Constitution on life support.
Clint Bolick is director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation and is a research fellow with the Hoover Institution.