WASHINGTON – Lyle Denniston looks at claims that a Supreme Court in a second Obama administration would be like the Warren Court on steroids.”


The statement at issue:

“It’s the third branch of government – the judiciary – that will likely give [Barack] Obama the greatest opportunity to fulfill his dream of a radical makeover for America.  The United States Supreme Court is at a tipping point unseen since the 1930s, and Barack Obama will likely be able to tip the Court far to the left if re-elected…. The Obama Court would probably be like the Warren Court on steroids.”

—Curt Levey, president of The Committee for Justice, a Washington-based conservative advocacy group that focuses upon the judicial branch, in an on-line column November 4, “Obama Supreme Court is the Stuff of Nightmares.”

We checked the Constitution, and…

Dramatic shifts in the way the Supreme Court decides major constitutional issues have occurred in the past. But they do not happen frequently, and they tend to be more gradual than sudden.  A president can have influence in trying to bring about such a shift, but even a strongly determined president needs a willing Supreme Court to make it happen. Abraham Lincoln tried and failed; Franklin Roosevelt tried and succeeded, but only when the court was ready on its own to go in a new direction; Richard Nixon tried and failed.

Even assuming some change in the court’s membership over the next four years, a re-elected President Obama—assuming that he genuinely wants a major makeover of the court—is likely to wind up quite disappointed. Mr. Levey’s call-to-arms to conservative voters on the eve of today’s election probably should be understood more as political cheerleading than as dependable prediction.

One factor that probably makes it far less likely than Mr. Levey anticipates that the Roberts Court will take on a decidedly more liberal complexion is that there literally are no justices left on the court who could be counted upon to be as liberal as were the dominant justices during the years under Chief Justice Earl Warren.

What might be called a “liberal bloc” on the present court is made up of—in the order of their seniority—Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Even assuming that one or two of the court’s more conservative members leaves the court in the next four years (Mr. Levey’s prediction), any liberal makeover certainly would have to begin with most if not all of the members of the present “liberal bloc.”

Among the expectations that Mr. Levey has of a court with new Obama nominees replacing conservatives is “abolition of the death penalty.” Not one of the four liberals has endorsed the idea that the death penalty is unconstitutional, as most-recently-retired Justice John Paul Stevens did. And the votes of those four would certainly be needed to rule that penalty unconstitutional, since the conservatives who would remain would resist strenuously.

In fact, Justice Stevens demonstrated in his career that, while he was generally considered to be a liberal, he was a good deal less so than the leading justices on the Warren Court—and yet Stevens was widely considered to be the most liberal justice to have been on the court in recent years, and it was generally understood that he had a strong influence in helping to keep Justice Anthony M. Kennedy from becoming a more predictable member of the “conservative bloc.” And, indeed, since Stevens’ retirement, Kennedy has actually voted more often in a conservative pattern.

Justice Breyer is clearly the most moderate among the “liberal bloc,” followed closely in that respect by Justice Ginsburg. Neither Justice Sotomayor nor Justice Kagan, though early in their careers, has yet demonstrated a tendency to vote as Warren Court members William J. Brennan, Jr., and Thurgood Marshall almost always did.

If one goes down the list of the “top 10 worst Supreme Court rulings if Obama is re-elected,” as compiled by Mr. Levey, it is difficult to find one that is genuinely predictable. Among the top 10, the ones that seem least likely (in addition to abolition of the death penalty), would be a ban on voter ID laws, “carte blanche for hate-speech laws,” prohibition on tuition vouchers, no limits on “racial preferences for minorities,” taxpayer-funding of abortions through the third trimester, and the end of restraints on illegal immigration.

The remaining three on the Levey list are elimination of the individual right to have a gun, creation of welfare and government-provided healthcare as constitutional rights, and creation of a constitutional right to gay marriage. Even the court as presently constituted has not been willing to expand the Second Amendment right to have a gun beyond having one for self-defense at home. And it is impossible to imagine this court creating a constitutional right to welfare or healthcare.  On what part of constitutional text or theory would it be based?

That leaves the question of gay marriage.  That is at least an arguable proposition, but the prospect is that the court, even with two new “liberal” justices, would be more likely to move more gradually, to see how that issue develops in the political community first.

Mr. Levey’s “nightmare court” may well make for good political theater at election time, but it probably is no more than that.

This article was originally published on Constitution Daily and is republished here with kind permission and thanks. In a continuing series of posts for Constitution Daily, Lyle Denniston provides responses to current issues based on the Constitution about its meaning and what duties it imposes or rights it protects.

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