Last year, the Court voted 6-3 that same-sex sodomy is a "right." This year, it voted 5-3 not to decide -- for now -- whether public school children can say "under God" in the Pledge of Allegiance.
Our moral culture hangs by a single vote in this divided court. But so, too, does our political culture. It is not only what will be decided but who will do the deciding.
Will Americans make their own laws and decide their own destiny through the ballot box? Or will arrogant, un-elected, liberal judges do it for them?
Kerry is for government by un-elected liberal judges. His record is uncharacteristically consistent here. He has only flip-flopped once on Supreme Court justices.
As a freshman senator representing a state with a large Italian-American population, Kerry joined a unanimous vote to confirm Antonin Scalia, the first Italian-American ever nominated to the Supreme Court. But on May 19 of this year, Kerry told the Associated Press he regrets supporting Scalia. "If you're looking for me to admit that I made a mistake in my years in the Senate, there you go -- there's one," he said.
Meanwhile, Kerry voted against confirming Rehnquist as chief justice, and against Robert Bork and Clarence Thomas as associate justices. More recently, he even voted to block up-or-down votes on Texas Supreme Court Justice Priscilla Owen and Miguel Estrada, constitutionalists whom President Bush nominated as federal appeals judges.
"I believe that a woman's right to choose is a constitutional right," Kerry said in May. "I will not appoint anyone to the Supreme Court who will undo that right."
What this litmus test really means is that Kerry wants justices who embrace the two unstated premises of Roe v. Wade: That the Supreme Court can act as a national legislature that can never be vetoed, and that when it does it must advance the liberal agenda.
Elect Kerry and that liberal agenda will keep advancing not only for the next four years, and not only when it can muster a narrow majority on a divided Court, but for as long as the justices Kerry appoints serve out their lifelong terms.