In any case, Calabresi and McGinnis somewhat exaggerate the dangers of new Democratic appointments: Given the most likely retirements, the most plausible scenario is that a Democratic President will be able to ensure that Ginsburg, Stevens (and possibly Souter) are replaced by liberals, thus preserving the status quo. On the other hand, it is the Wall Street Journal editorial page, so a degree of foaming about the mouth about the liberal judicial menace and its imminent destruction of the country is de rigeur.

The next President will very likely decide who replaces Stevens and Ginsburg on the Court.

In the short term, a Dem appointing liberals will preserve the status quo and potentially build towards a liberal majority if there is a Dem in office when Scalia and Thomas retire.

However, and this is why I am leaning toward holding my nose and voting for McCain, a GOP President can establish a solid conservative majority for at least a decade even if he misses on one of the two picks.

Conversely, I have no reason to believe that either McCain or Romney really want to overturn Roe v. Wade, or, for that matter, Lawrence v. Texas or any of the substantive due process cases that drive judicial conservatives nuts. Like their predecessors, I suspect that McCain and Romney would prefer a Court that hollowed out Roe without officially overturning it.

The problem is that a President cannot fine tune the judiciary in this way. The President is making his or her best guess as to the general approach of a justice and then can only stand back and see what happens. If you mix a 6-7 member conservative majority with a case contesting a state provision like the Unborn Person Amendment establishing legal personhood at conception and you could very well have a reversal of Roe.
 

I am much less sanguine about Republicans putting in place a conservative court. I look at Alito and Roberts and I see there project as not being conservative but really much more radical on the right. So I fear the effort will be to continue to radicalize the Court to the right.
Best,
Ben
 

Every election, activists overestimate the number of Supreme Court justices in play. We have been hearing about Stevens retiring for 20 years and Ginsburg retiring for 10. O'Connor stayed on the court for many years after she was first talked about retiring.

I'm not saying the issue is unimportant; only that everyone assumes that there will be more Presidential appointments than there actually will be.
 

THREADJACK ALERT:

Sen. Cardin is passionately arguing for judicial determinations of whether telecoms may be granted immunity. This is an abomination that we are even having this discussion (see, e.g., Krupps in 1930's Germany), but by far the more damning statements come in the discussions of sunset provision re: the FISA tinkering in PATRIOTs I and II.

The legislature has no authority to sidestep the 4th, much less to make a half-arsed attempt to pass the buck on to subsequent Congresses for determination of whether we are going to honor the letter of the law. I think if anything, the preceding three gleefully fascistic Congresses have demonstrated that sunsets are a legislative tool to have one's cake and eat it too.
 

This comment has been removed by the author.
 

Jack, the real problem is that none of the "modern Republicans" on the Supreme Court [Mark Tushnet's label] have acted judicially on sensitive cases. These judges [now Roberts, Scalia, Thomas & Alito, formerly Rehnquist] are all associated with the Federalist Society. The Federalist Society was created and has functioned as a means of installing federal judges who will decide lawsuits favorably to the agenda of the Bush-Delay wing of the Republican Party. Last term the four Federalist Society justices suborned their fellow Catholic, Justice Kennedy, to vote for the same Republican agenda.

The Federalist Society also has installed law clerks for federal judges who were "real lawyers" - rather than ideological government hacks - before those judges were appointed to the federal bench. These law clerks have assured that when former "real lawyer" judges issue opinions on "agenda issues," the clerk's draft of the opinion advances the "modern Republican" goals.

In other words, the Federalist Society has now achieved one of its major goals. It has packed the Supreme Court and the lower federal judiciary with judges whose primary consideration in deciding a case is "What outcome does the 'modern Republican Party' want in this case?" As long as Justice Kennedy (a traditional Republican in Tushnet's classification) remains aligned with the Federalist Four, the Federalist Society agenda will prosper.

The jurisprudential gymnastics that show up frequently in Justice Kennedy's opinions in 5-4 decisions suggest to me that Kennedy still thinks that he is deciding cases as a judge, not as a politician or ideologue.

If McCain or Romney gets to appoint additional Federalist Society clones to replace Stevens and Ginsberg, the judicial branch may sustain the "modern Republican" agenda for a generation after the Democratic Party regains control of the other branches of government. This will happen because of outcome-oriented judges, not because of judges who are "conservative."
 

I'll grant you that Parents Involved wasn't a model of judicial restraint, but if you closely examine the programs, and think that decisions like Croson are binding precedent, I think you had to overturn those plans. It's one thing to say that you want some measure of diversity in the schools. It's quite another to say that each school has to mirror the overall demographic of the city it's in and if it's off by +/- 10 percentage points kids need to be sent somewhere they don't want to go to fix it. As I recall, Seattle is 59% white and 41% non-white. Each school had to be within 10% of that mix, plus or minus. So if a school was 52% non-white and 48% white, that meant that unacceptable levels of white flight were occurring and white kids had to be sent in to restore things to a proper balance. 52/48 sounds awfully integrated and diverse to me. And let's not even get into the white/non-white classification and how, if diversity was what you were after, it would make a lot more sense to actually look at what race these non-white students were. The way Seattle set things up, 48% white, 32% black, 10% Latino and 10% Asian isn't diverse enough, but 59% white and 41% Asian is. That's not diversity, that's bizarre racial balancing that isn't even reasonably related to any policy objective, compelling or otherwise. I think Kennedy would have been willing to allow a plan that simply assured that no school became too monoracial, and I define a monoracial school as one where, say, 80% of the students are of one race. Now, such a plan would allow for a school that's entirely black or Latino, so we might also add in a proviso that says that whites in particular have to comprise at least 20% of any school. Now you have something that's at least somewhat narrowly tailored towards achieving diversity.
 

Just to clarify, the second-to-last sentence should read "such a plan should allow for a school that was entirely black and Latino," not 'black or Latino.' And to make my example about the white/Asian school stronger, it's also the case that even a 69/31 white/Asian school would count as balanced under the Seattle plan (while a 48/32/10/10 white/black/Latino/Asian school would not).
 

Balkin: "I have no reason to believe that either McCain or Romney really want to overturn Roe v. Wade..."

I'm not quite sure if this "no reason to believe" language is intended to be taken literally, but if it is, it strikes me as wildly overstated. McCain has said, "I do not support Roe versus Wade. It should be overturned." Or see here: "Throughout his bid for the GOP's 2008 presidential nod, Mitt Romney has called for overturning Roe v. Wade." You might think you have reason to believe they're lying, but I don't think they've shown themselves sufficiently untrustworthy that their statements supply no reason to think that they are true. If I were to regard your statements above as supplying no reason to think that you believe them--if, say, I were to think that you really believe that Calabresi and McGinnis's analysis is spot on, your protestations to the contrary notwithstanding--you'd think it was outrageous, no?

(Earlier comment deleted to remove egregious error in verb agreement!)
 

Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century.

Also given those accelerating gains in medical technology, it is pretty easy to see what some of the new frontiers of judicial activism might be. Not only will people be working on technology to extend life, but also to create it and design it, creating a conflict and possibly soon eclipsing natural conception rights.

McCain, Romney, Clinton and Obama might be all over the map on genetic engineering of children and postgendered conception, as well as on the priority of life-extension and immortality. It's anyone's guess which would appoint judges who believed reproductive technology could be restrained by government policy, state or federal. Surely we should ask the candidates feelings on this, and ask if they would nominate judges who agreed with their views about genetic engineering and the rights of scientists dictate the genomes of people, the rights of people to have natural children, the requirement of male and female progenitors, etc.

We know that this is going to be an issue...
 

tray: "I'll grant you that Parents Involved wasn't a model of judicial restraint, but if you closely examine the programs, and think that decisions like Croson are binding precedent, I think you had to overturn those plans."

tray, you're a master of understatement! "Parents Involved wasn't a model of judicial restraint," indeed!

Kennedy granted relief to the Louisville plaintiff who (1) had not complied with reasonable administrative rules when choice of school was denied initially, but who (2) was granted choice of school the next year when the administrative rules were followed. If any government body other than a moderate school board had denied the request of a citizen who had not complied with reasonable administrative rules, the Federalist Society Four on the Supreme Court would never think of disturbing such a decision.

In the Louisville case, Kennedy and the Four reached out to take and decide a case involving an extremely complicated school assignment system that had been developed to comply with a federal court order that required the school board to eradicate the vestiges of racial segregation in pupil assignment. A favorite slogan of federal judges who are "modern Republicans" is that they do not sit as a "super school board" to review the merits of individual decisions, even when those decisions touch on the constitutional rights of students and teachers. As in the "Bong hits for Jesus" banner case, decided by the same justices in the same week as Parents Involved, great deference is paid by federal courts to the decisions of local school boards. Except when the school board's plan to maintain diverse student populations imposes occasional burdens on white students.

In addition, one year the Louisville student assignment regime was held by a federal court to be constitutionally proper and effective to remove vestiges of racial segregation. Almost immediately after the court found that all "vestiges of racial segregation" had been removed, Kennedy and the Federalist Society Four declared the same plan to be constitutionally defective because the plan supposedly was not "narrowly tailored" to minimize reference to race in pupil assignments.

No wonder Justice Breyer was moved to read from the bench his passionate dissent in the school desegregation cases.

The Louisville decision established that unless a school district is still subject to a court order entered to correct the effects of prior state-caused racial segregation, NO race-conscious pupil assignment scheme will pass constitutional muster if it is reviewed by Justice Kennedy and the Federalist Society Four.

This five-justice majority did not decide these cases on neutral judicial principles. They chose the outcome that fit the "modern Republican" agenda. In the school cases, that Republican agenda sought the result that fit with Justice Kennedy's unexamined personal prejudices, a result that Justice Kennedy reached in his opinion - albeit with some difficulty in explicating a consistent rationale.

Justice O'Connor's decision in Grutter (University of Michigan Law School case) makes clear that she would never have ruled against the Louisville school board. Croson simply did not require the results that Justice Kennedy and the Federalist Society Four reached in the pupil assignment cases. The Court would never have ruled against the Louisville school board when the Federalist Society agenda only had two consistent adherents on the Court (Scalia & Thomas).
 

Ray, what do Federalists think of genetic engineering of babies and same-sex conception? If my experience at RedState is any indication, they think it is not good, but a federal ban would be worse, on principle. They seem to favor the commercial opportunities and reproductive liberty and scientific freedom and possibly the "better humans" themselves, as opposed to fearing the big government regulations and entitlements and probable loss of reproductive freedom.

Any guess about the Federalist postition? Roberts was quized about this by Schumer in his confirmation hearings, and said he felt that cloning was clearly an interstate commerce issue, so that's good.
 

And Jack, are you ever going to address the relationship of marriage to the issue of whether or not same-sex conception is prohibited? Can there be marriages that don't have a right to conceive with their own genes, or does that change the rights of marriage for everyone?