Jonah Goldberg
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Every four years, we're told that this is the most important election since a caveman asked for a show of hands. So some skepticism seems warranted when we hear the same refrain this year.

But then there's the question of the Supreme Court. And here, at least for me, skepticism melts away into real anxiety, even panic.

Consider the stunning decision handed down from the Supreme Court this week.

The court ruled that the state of Kentucky may continue to use lethal injections when administering the death penalty. But that's not what's shocking. Nor was it surprising that for the first time Justice John Paul Stevens admitted he thinks the death penalty is unconstitutional.

What is staggering, or at least should be, is that Stevens freely admits that he no longer considers "objective evidence" or even the plain text of the Constitution determinative of what is or isn't constitutional: "I have relied on my own experience in reaching the conclusion that the imposition of the death penalty" is unconstitutional.

Justice Antonin Scalia, in a blistering response, justifiably exclaimed that, "Purer expression cannot be found of the principle of rule by judicial fiat."

I say "justifiably" rather an "accurately" because I think we hear purer expressions of the principle that "good" judges are those who make it up as they go along all the time. Consider Barack Obama. The Democratic front-runner and former lecturer on constitutional law at the University of Chicago has explained his thinking toward judicial appointments thusly: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old - and that's the criteria by which I'll be selecting my judges."

When defending his vote against Justice John Roberts' confirmation, Obama explained that the standard for a justice must be "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

Now that is a pure expression of the principle of judicial fiat.

Indeed, by Obama's own words the best justices are those who will most shamelessly violate their own oath of office.

Supreme Court justices must "solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as a justice of the Supreme Court of the United States under the Constitution and laws of the United States, so help me God."

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Jonah Goldberg

Jonah Goldberg is editor-at-large of National Review Online,and the author of the forthcoming book The Tyranny of Clichés. You can reach him via Twitter @JonahNRO.
 
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