Further to Paul’s point below on “Ted Olson’s Bad Idea,” just take in the dreams of Erwin Chemerinsky, writing a couple weeks ago in The Atlantic about his ideas for what the Supreme Court could do with a durable liberal majority. Chemernisky, one of the leading liberal law professors in the country, doesn’t even try to disguise or dress up his undemocratic will to power:
Thinking of a Court where there are five or even six justices appointed by Democratic presidents is tantalizing for those on the left, like me, who have spent their entire careers with a Court that has been decidedly right of center. So, where might it most make a difference? . .
Death penalty. In 2015, in Glossip v. Gross, Breyer wrote a dissenting opinion, joined by Ginsburg, explaining why the death penalty is unconstitutional. Most expect that Sotomayor and Kagan would come to the same conclusion if there were a fifth vote to end the death penalty.
This, even though the death penalty is specifically mentioned in the text of the Constitution.
Second Amendment. Until 2008, not once did the Supreme Court find a law to violate the Second Amendment. Then, in District of Columbia v. Heller, the Court, by a 5-4 margin, declared unconstitutional a 35-year-old District of Columbia ordinance that prohibited private ownership or possession of handguns. Scalia wrote the opinion for the Court. A Supreme Court bench with five Democratic appointees will not extend this protection for gun rights and likely would overrule it, returning to the view that the Second Amendment protects only a right to have guns for the purpose of militia service.
Also completely ahistorical. But easy to get around. Idaho will simply declare every adult citizen to be a member of the state militia.
Dreaming. The possibility of five or six Democratic justices allows one to imagine what might be done in other areas. Might the Court find a constitutional right to education and conclude that disparities in school funding violate the Constitution? Might the Court find that the racial injustices in the criminal-justice system violate equal protection? For so long, progressives have had to focus primarily on keeping the Court from overturning precedents and limiting rights. Justice Scalia’s death and the coming presidential election allows liberals to dream of how much a different Court could do to advance liberty and justice for all.
Chemerinsky’s dream could well become the American nightmare over the next few years. Given the Democratic Party’s lust for the exercise of raw judicial power, Republicans would be right to cite this article as reason for opposing every single Democratic Supreme Court nominee, starting with Garland.