- The Washington Times - Friday, August 15, 2008
OP-ED:

Sen. Barack Obama’s liberal base views the 2008 presidential election as historic and exciting. They are passionate and energized. Moderate-to-conservative voters, on the other hand, just don’t seem to have much interest. Why should they care? Sen. John McCain, after all, is something of a political maverick, often a relatively liberal Republican. As president, he is unlikely to be a passionate leader for limited government, lower taxes, or border control, to name just a few issues that get conservatives excited.

But moderates and conservatives ought to care about this presidential election. They ought to care a lot, because the future of the U.S. Supreme Court hangs in the balance, and that balance will determine the shape of our nation for decades to come. The current court divides fairly consistently, at least on the polarizing, hot-button issues, into three camps. On one side are four Justices — Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito — who understand that the Constitution is a written document setting rules and parameters around our government. One may not always agree with the outcomes they reach in particular cases, but they do at least generally attempt to interpret the text and apply the meaning of the words.

On the other side are four justices — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — whose jurisprudence follows the old Warren Court “living Constitution” approach. They don’t particularly care about the words and meaning of the Constitution. They will read it any way necessary to reach the enlightened outcomes that create the kind of America they desire. These “living Constitutionalists” are well-intentioned, but very dangerous. Since almost every divisive legal and social issue ends up in the Supreme Court sooner or later, if the justices can create a Constitution that means whatever they want it to mean, their personal opinions can trump every other voice. Representative democracy goes out the window. We are governed by judges with lifetime tenure.

Squarely in the middle stands the always-unpredictable Justice Anthony Kennedy. You never know whether he will take the “conservative” or “liberal” position, whether he will act like a textualist or a re-inventor of the Constitution. Justice Kennedy is the ultimate wild card. This delicate, unpredictable balance will likely fall one way or another the next time a seat on the Court changes hands. One more justice in either the original meaning camp or the living Constitution group would make Justice Kennedy a largely irrelevant 6th vote instead of the always crucial 5th.

There is a pretty good chance that the president who takes office in January 2009 will appoint one or more Supreme Court Justices. Justice Stevens is now 88 years old. Justice Ginsburg is 75 and has had issues with cancer. Another justice might die or retire for reasons that we can’t foresee.

Supreme Court appointments are always unpredictable, but looking at Mr, Obama’s political history and rhetoric, he seems highly unlikely to even consider a judicial candidate who applies the written text of the Constitution. That alone ought to be enough to make conservatives and moderates take the upcoming election very seriously.

Bradley P. Jacob is an associate professor of law at Regent University.