Aha...

Today's Washington Post featured an article by E.J. Dionne that began by asking, "If the long conservative era that began with Ronald Reagan's election is over, will the judges appointed during the right's ascendancy be able to block, frustrate and undermine the efforts of a new progressive majority?" In a nutshell, Mr. Dionne spends the next thirteen paragraphs answering this question with a resounding "probably".

He may very well turn out to be right, and I share his belief that unelected conservative judges have no business thwarting the clearly expressed democratic will of the American people based on their own personal ideological biases. Almost needless to say, however, Mr. Dionne entirely ignores the myriad cases with which the jurisprudential landscape is littered in which liberal judges did just that. This is not to mention the, shall we say, rather overstated litany of potential horrors he fears a more right-leaning Court may perpetrate which he parades in front of the reader.

"It's not hard to imagine the cases that conservatives would bring against laws passed by a Democratic Congress and signed by a President Barack Obama," Dionne writes. "Why wouldn't a movement that has tried to eviscerate wetlands laws and the Endangered Species Act challenge cap-and-trade legislation aimed at dealing with global warming? If Congress ever passed a "card-check" law to make it easier for unions to organize, those who never much liked the minimum wage or collective bargaining would certainly try to overturn the new labor right in court. And what would be the legal fate of new regulations on banking called forth by the economic devastation of the subprime mess, or bank bailouts that may be necessary to keep capitalism on track, or mandatory mortgage renegotiations to keep people from being thrown out of their homes?"

It's quite the doomsday scenario our friend has painted for us, isn't it? Well. While I wouldn't quite put it past legions of fulminating right-wing lawyers to mount constitutional challenges to many, or perhaps even most, or perhaps even all of the afore-enumerated liberal policies, I rather suspect that the odds are against the Court's striking down many, if any, of them on constitutional grounds. Let us disregard the obvious riposte that few or no such challenges could honestly be said to be grounded in the Constitution's written strictures--after all, this would prove no great obstacle to truly activist judges, even those of a conservative bent. Mr. Dionne, I think, has greatly overestimated the conservatism of today's Supreme Court. There are still only four reliable, consistent conservatives on the Court today: the boilerplate-spewing Thomas, the old originalist warhorse Scalia, and the new kids on the block, Roberts and Alito. As last week's decision rejecting the death penalty as punishment for the unspeakably brutal rape of a young girl showed, this right-wing cohort is more than effectively counterbalanced by the aging liberal luminaries Stevens, Souter, Breyer and Ginsburg. Chief Narcissist Kennedy, meanwhile, ricochets between liberal and conservative positions with merry abandon. Today's Court isn't right-wing; it's polarized, is what it is.

That may change, of course, should John McCain pull off the remarkable feat of winning the presidency--and the right to make Supreme Court nominations for at least the next four years with it. I say "may change" rather than "will change" simply because it is not unheard of for a president to grossly misperceive the true ideological leanings and judicial philosophy of one of his appointees to the Court. (The incorrigibly liberal David Souter was, after all, appointed by the first President Bush on the mistaken expectation--fed by Souter's own nomination hearing testimony--that he would hew to the conservative, "originalist" wing of the bench.) Nonetheless, even this possibility hardly gets Mr. Dionne off the hook, since as the above excerpt from his article shows, the scenario he draws presupposes the accession of a certain apostle of Audacious Hope to the Oval Office.

Even if McCain should beat the odds and win the White House, however, and eventually dispatch more conservative gavel-pounders to One First Street Northeast, Washington, D.C., and said Justices do deep-six a slew of liberal pet projects, it will still prove my essential argument. Because if this (unlikely) scenario does play out, we can rely upon Mr. Dionne and his co-ideologues to condemn said jurisprudence, in the strongest terms, as a form of "judicial activism" or "judicial overreach"--which is precisely what it would be. It would be a golden opportunity for right-wingers to puff up their chests and say, "So, you liberals want to appoint judges who'll legislate from the bench? Well, two can play at that game!" This would be just the rude awakening liberals need as to how judicial activism lends itself just as well to right-wing causes as to left-wing ones, and prove that the intrinsic principle on which such activism ultimately rests is neither liberalism nor conservatism, but quite simply the raw, virtually unchecked power of the judges themselves. May such a turn of events finally open liberals' eyes to the folly of allowing unelected and unaccountable judges to remake the Constitution in their own ideological image and likeness. Now that is an audacious hope indeed.