On Sunday, September 21, the New York Times published an editorial ("The Candidates and the Court") predicting that, if elected president, Barack Obama will appoint "moderate" or "centrist" justices, like Stephen Breyer, rather than "all-out liberals, like William Brennan or Thurgood Marshall." The Times argued this is a good reason to elect Obama rather than John McCain, who would appoint "archconservatives" and would "complete President Bush's campaign" to make the Supreme Court "an aggressive right-wing force."
The Times is right to predict that President Obama would appoint less conservative justices than President McCain. It is also right to argue that this is a good reason to elect Obama. It may even be right to predict that President Obama will appoint "moderate" or "centrist" justices, rather than justices like Brennan or Marshall. But if this prediction comes to pass, it will be bad for the law, bad for the Court, and bad for the nation.
I have nothing against "moderate" or "centrist" justices, or even against "archconservative" justices. They belong on the Supreme Court. But this is not what the Court needs today. By predicting that President Obama will appoint such "centrist" justices, the Times may be furthering Obama's political interests, but it is implicitly legitimating the profoundly false notion that "liberal" justices like Brennan or Marshall are somehow out of the mainstream of American legal thought.
The Supreme Court is at present more conservative than at any time in living memory. Twelve of the last fourteen appointments were made by Republican presidents. Seven of the nine sitting justices (all but Breyer and Ginsburg) were appointed by Republican presidents. Four of the current justices (Scalia, Thomas, Roberts and Alito) are more conservative than any other justice who has served on the Supreme Court in more than half-a-century. As Justice Stevens has observed, with one possible exception, every Supreme Court justice appointed since the mid-1970s has been more conservative than the justice he or she replaced. (The possible exception was Ginsburg for Blackmun). During that time, the so-called swing justice has moved consistently to the right, from Stewart to Powell to O'Connor to Kennedy.
Perhaps most important, not a single justice on the current Supreme Court today is, in the words of the New York Times, an "all-out liberal." The absence of any voice within the Supreme Court representing the views of justices like Brennan and Marshall has distorted the Court's internal discourse and warped the national sense of judicial "balance."
It is important to remember that it was the so-called "liberal" justices who were responsible for some of the most fundamental legal decisions in our nation's history, including landmark decisions ending racial segregation, prohibiting school prayer, guaranteeing one person/one vote, protecting the rights of racial, religious and political minorities, and assuring due process of law and the right to counsel to individuals accused of crime. For the Supreme Court not to have such voices within its inner counsels undermines the Court's mission and leaves it intellectually crippled. It is flying on one wing.
What makes a justice "liberal" is the understanding that in a democratic society the most central responsibility of the Supreme Court is to ensure that the majority respect the rights of the oppressed, the unrepresented, and the disenfranchised. Liberal justices have played an essential role throughout our history in preserving these core constitutional values. Unlike the current "archconservative" justices, who aggressively use their power to interpret the Constitution to protect corporations, wealthy corporate donors, and gun owners, "liberal" justices have traditional protected the rights of minorities and dissenters. Perhaps President Obama will, as the Times predicts, appoint "centrist" justices. But if he does, he will fail the Supreme Court, the Constitution, the law, and the nation.