As they do every four years, liberal columnists and pundits are fretting that a Republican presidential victory will mean a right-wing U.S. Supreme Court that will undo decades of (mostly liberal) precedents.
Funny thing, we've had a working conservative majority on the Court for over a quarter-century, and the hysterical predictions haven't come true. The Court has restored greater protection for property rights and limits on government power, but the Court has overturned few precedents. The changes have been evolutionary, not revolutionary.
The real danger is that we are one vote away from a return to the bad old days of Warren Court judicial lawlessness. The Court's four-member liberal bloc is far more ideologically cohesive than the five who often comprise a conservative majority.
All four, for instance, voted to uphold racial preferences at the University of Michigan (even the explicit preferences that the majority struck down), dissented from the District of Columbia gun-rights ruling, voted to uphold a law to force the Boy Scouts to allow gay scoutmasters, dissented from the landmark ruling upholding school choice, have consistently supported open-ended national government power under the Commerce Clause, and voted to allow the use of eminent domain in the infamous Kelo case.
They are one vote shy of tipping the balance on all of those issues and more.
It appears that if elected president, Barack Obama will have a Senate that will rubber-stamp his judicial nominations. He has spoken about desirable judicial qualities such as "empathy," but little if at all about fidelity to the rule of law. The wise columnist Thomas Sowell observes that liberal ideologues do not really support a "living Constitution" as they often claim, but a dying one. We may be in for a very tough fight to protect our precious liberties.
Clint Bolick is the director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.
Arizona Republic: Scare tactics dog McCain on possible justice picks
Wikipedia: Warren Court
Oyez: U.S. Supreme Court Media
Townhall: Thomas Sowell Columns