Obama and the Supreme Court — from “living constitution” to monster constitution

Ed Whelan takes a look at the consequences of an Obama victory for the Supreme Court. The consequences aren’t pretty.

Some conservatives downplay the likely impact of an Obama victory, noting that the judges he is most likely to replace are liberal devotees of a “living Constitution.” Whelan has several responses.

First, the Court needs to improve and can’t unless McCain wins. In Whelan’s view, with the Court as it is now constituted there may very well be “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.”

Second, Obama would likely nominate, and the Senate confirm, Justices well to the left of the current crop of liberals:

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.

Third, life is too unpredictable to assume that Obama won’t have the opportunity, in his first term, to replace one or more of the four Justices who are committed to judicial restraint. Moreover, most presidents are elected to serve a second term.

Ed concludes:

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.

Some may think that the last sentence goes too far; indeed, I found it jarring when I first read it. But jarring isn’t the same thing as wrong, and I think Whelan has it right. When the Supreme Court replaces the policies enacted by elected representatives with the policies they prefer, and this is done without a serious regard for the language of the Constitution on the theory that the Constitution is a “living” document, representative government is, by definition, undermined.

We’ve already started down that path. Obama might well take us the rest of the way.

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