Two of the U.S. Supreme Court's most liberal justices - Sandra Day O'Connor and John Paul Stevens - are on the verge of retirement. Chief Justice William Rehnquist, 80, is undergoing treatment for thyroid cancer and unlikely to return to the bench. The impending change in the court's composition could have a profound effect on issues as pervasive as affirmative action, the level of separation between church and state, gun control and abortion rights.
President Bush favors justices who protect state rights and restrict national power. Rightly so. Legislators are accountable to the people, whose vote acts as the ultimate check on the abuse of power. Legislators will do anything to avoid losing an election - even a good job. But there is no direct conduit between the will of the people and the judiciary. Unelected and unaccountable judges ought not be given the power to create law.
At the same time, we cannot deny that all judicial decisions are the product of value judgments. The Constitution is an enumeration of principles, not specific acts. Its most important passages are vaguely worded. The meaning of the Ninth Amendment, which guards against government intrusion upon personal liberty, has been subject to vigorous and contradictory debate. The answer of where to draw the line between individual autonomy and the need for federal standards varies with an individual judge's sense of equity and the interpretive methodology he chooses to employ - is the phrase "individual liberty" to be interpreted in terms of the social values of the 18th-century agrarian society that produced the Constitution, or our own?
So as a new court prepares to confront the dominant constitutional dramas of our day, a crucial question is what level of individual conscience and equity should inform their analysis? On one end of the spectrum is the grand moral theorizing of the Warren Court. which used vague notions of personal autonomy to create sweeping constitutional rights from thin air (Roe V Wade is the prototypical case). Most observers are now in agreement that the grand ideological sweeps of the Warren Court violated important notions of judicial self-restraint. Partly in response to the Warren Court, judges now shy away from moral theorizing. Decisions tend to be crouched in logic rather than natural law concepts of right and wrong. Indeed, one would be hard pressed to walk into any courtroom in this country and win a case by appealing to the natural law.