Legal Affairs – Ambivalence In the Pursuit of Judicial Modesty Is No Vice
by Stuart Taylor, Jr.
It’s no secret that the next President could alter the ideological balance on the Supreme Court. The Court is so closely divided that the next appointment or two could produce a shift either to the liberal or to the conservative side. What’s less widely appreciated is that the current makeup of the Court so closely mirrors the nation’s divisions, with those at the center often striking so delicate a balance, that a dramatic shift in either direction would be quite unsettling for the body politic. With the Justices split 5-4 on affirmative action, racial gerrymandering, church-state relations, and states’ rights, a one-vote switch could, for example, virtually wipe out governmental use of racial preferences–or ensconce them more firmly than ever before. Roe vs. Wade hangs by two votes. And the next President’s appointments (if any) could make the Court far more conservative–or more liberal–on gay rights, the "right to die," campaign finance restrictions, feminist causes, and other ideologically charged issues. But thoughtful liberals should hesitate to wish for a Court bent on sweeping away laws requiring that parents be notified when their children seek abortions, or junking the military’s restrictions on women in combat, or striking down the death penalty (again). And thoughtful conservatives should hesitate to wish for a majority bent on eradicating the racial preferences used by most elite universities (and other institutions), or reinstating prayer in public schools, or overruling Miranda vs. Arizona (as the current Court has been urged to do in a pending case). The reason is that popular government works best when Justices use their powers sparingly and seek to foster and inform rather than to pre-empt democratic debate on the great issues of the day, and when they respect their own precedents. Such restraint comes most naturally to Justices who can see merit in both liberal and conservative perspectives.