When Justice William Brennan died, The Washington Post's Supreme Court reporter, Joan Biskupic, wrote an admiring obituary that contains the best short description of the philosophy behind "landmark liberal rulings." Brennan's vision, she wrote, "found the essential meaning of the Constitution not in the past but in contemporary life, prized individual rights beyond what was explicitly written in the text and compelled him to reach out to right perceived wrongs."
Backward-looking nonactivists may look for the meaning of the Constitution in the text and previous rulings on the text, but Brennan found it in "contemporary life," discovering (or inventing) unsuspected new rights, shaping his personal version of the Constitution to redress wrongs that he felt judges must correct. The blunt way to say this is that he made it up as he went along, erasing the line between law and politics.
Summing up what the court has become, Robert Bork wrote recently: "Constitutional law is useless to study and impossible to teach. ... What was within living memory an intellectual discipline is now politics, and a simplistic, highly partisan form of politics at that."
Why have 10 Republican nominees made so little headway against this trend? One reason is that the legal world is dominated by the activist left. Enormous pressure is brought to bear against dissenters. Opinion at the law schools, which are increasingly devoted to freewheeling judicial activism, matters a lot to members of the judiciary.
The American Bar Association is now a conventional liberal pressure group. The annual meeting of the Association of American Law Schools (AALS) presents "the full gamut of opinions from left to far left," said Charles Fried, a former solicitor general who is now a professor at Harvard Law School. One dean told the AALS meeting she would be reluctant to hire a professor opposed to abortion because she felt her faculty would be unwilling to interact with anyone who wasn't pro-choice. Yes, conformity is always less troublesome.
As a result of all this pressure, the system is set up to produce converts, ostensibly conservative judges who "grow" on the bench. The upshot is that Democratic presidents can be fairly sure of what they are getting when they name someone to the court. Republicans can't.
Breyer and Ginsburg, regarded as moderates, have taken a fairly hard line on the court. They haven't met a racial preference or quota they didn't like or a regulation on abortion that shouldn't be struck down. Comparably moderate Republican nominees are always in danger of leftward "growth."
Andrew Sullivan thinks that if Bush wins, "the judicical activists gnashing their teeth in a few years time will be ideological conservatives, not dogmatic liberals." That will happen only if Bush wins and is careless or timid in his picks for the court. No more stealth candidates like Souter, please. And no more drifting O'Connors, either.