ACRU

The Supreme Court in the Balance

Conservatives have been fighting to reverse a liberal activist Supreme Court since the 1968 Nixon campaign. Now, almost 40 years later, we are on the verge of success. But have we lost interest?

The current court is very finely balanced between conservatives and liberals. There are 4 solid conservatives on the court, Antonin Scalia, Clarence Thomas, John Roberts, and Sam Alito. There are also 4 solid liberals, John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer. Then there is Anthony Kennedy, who keeps wandering back and forth, with the outcome of every ideological case dependent on his whims.

Conservatives have already begun winning key cases in both the Supreme Court and lower courts. School vouchers, even for religious schools, have been upheld as constitutional. The Supreme Court recently upheld a Federal law banning partial birth abortion, even though the High Court and the lower courts had consistently struck down all previous bans. In 2000, the Supreme Court ruled that the Boy Scouts have a constitutional right to choose what values they want to uphold and promote, and can choose to hire only those who represent those values. Consequently, the Scouts cannot be found to have committed illegal discrimination in refusing to appoint openly gay Scoutmasters. The DC Circuit Court of Appeals also recently ruled that the Second Amendment really does protect an individual right to keep and bear arms, just like it says.

By April 20, 2009, ultraliberal John Paul Stevens will be 89 years old. He is unlikely to survive the next President’s term on the court. If he is replaced by a true conservative like the other 4, the balance of the Court will shift decisively to the conservatives.

In addition, Ruth Bader Ginsburg looks every one of her 74 years and is reportedly in ill health. Before the end of the next President’s term, she will be 80 years old. The next President will likely replace her as well. If another solid conservative is appointed, that would make 6 conservatives, 1 wandering moderate, and 2 liberals.

What an enormous victory for conservatives that would be. In addition to the social issues, this will make a big difference as well on such economic issues as property rights, including intellectual property, tort reform, business regulation, further school voucher cases, and others.

But are the conservatives still paying attention? They seem confused, disoriented, and diffident regarding the next election. They need to be focused on getting a President who will make appointments like Alito and Roberts, or even Scalia and Thomas. They also need to be focused on getting a Senate that will confirm them.