Jeffrey Rosen of The New Republic tries to reassure (I guess) supporters of both Bush and Kerry that if the other guy wins the Supreme Court sky will not fall.
In fact, what is at stake in the election is not the future of Roe v. Wade, school prayer, or any of the culture-war issues that have inflamed the country since the 1970s. The left may be hesitant to acknowledge it, but the Rehnquist Court has largely sided with liberals rather than conservatives in these cultural battles. It has done so because liberals have won in the court of public opinion. And the chance of either Bush or Kerry getting through the Senate justices who want to revisit those well-settled precedents is low.
Instead, Rosen predicts, if Bush wins a future Supreme Court would continue to nibble away at the edges of the regulatory state. And if Kerry wins?
… the justices he appoints are more likely to turn to international law to define the meaning of U.S. constitutional guarantees, such as due process, cruel and unusual punishment, and equal protection.
So, if Kerry wins, not only will we defer to the French and Germans and their friends in the UN to proctor the global test of whether U.S. military action abroad is justified. We will also defer to them in determining the meaning of “equal protection.”
Does the 14th Amendment require strictly proportional racial and ethnic representation? Gee, I dunno. Let’s ask Kofi Annan….
In general I oppose our judges taking foreign law as coercive, but in the specific case of equal protection law French jurisprudence would be an improvement. Whatever their faults, the French are much better than we at adhering to the principle of colorblind law.