What Conservative Legal Revolution?

By John Yoo, The Wall Street Journal

This week's Supreme Court arguments over ObamaCare have left opponents of the law quietly crossing their fingers. Questions from the bench hint that the court's conservative wing may hold together to strike down the individual mandate, which requires all American adults to purchase health insurance. But this week's arguments also reveal the risky gamble of placing all hopes of stopping ObamaCare in the courts, and they underscore the pivotal importance of this year's elections to restoring limited government.

Overturning ObamaCare by a mere 5-4 margin would show the tenuousness of the 40-year conservative campaign to alter the Supreme Court. In the four decades since Richard Nixon first made the Supreme Court a campaign issue, Republicans have controlled the White House for seven presidential terms and Democrats for only four. Yet conservatives and liberals can claim four seats each on the court, with Anthony Kennedy happily floating about in the middle.

Republican presidents nominated justices such as Harry Blackmun, John Paul Stevens and David Souter, who became dependable liberal votes. Democrats have yet to make a similar mistake.

As a result, the conservative revolution in constitutional law has fizzled. The court has reaffirmed the right to abortion, intervened in wartime military decisions, upheld distortions of the separation of powers such as the independent counsel statute, and barely nibbled at the outer reaches of the New Deal expansion of federal power over the states.

While the high court has not conjured forth as many new constitutional rights as it once did, it may soon impose gay marriage on the country when it gets the case of Perry v. Brown. Only in the area of criminal procedure, where the solid liberal bloc sometimes suffers defections, has the court seriously rebalanced constitutional law.

The winner of this November's presidential election may enjoy the chance to appoint three new Justices. By the end of the next president's term in 2016, Ruth Bader Ginsburg will be 83, Antonin Scalia and Justice Kennedy will turn 80, and Stephen Breyer will be 78.

This points to a remarkable increase in longevity on the court. Before World War II, justices were on average 69 years old at retirement. After World War II they were 73, and for justices appointed after 1968, they were 80. Until 1968, justices averaged about 15-16 years on the court; after that the figure shot up to 24 years. By 2016, Justice Scalia will have served for 31 years, and Justice Kennedy for 29. Plainly, the next president will have the chance to lock into place a conservative court majority or to launch a liberal counterrevolution. Should President Obama win re-election, he may even appoint a majority of the Supreme Court that conceivably could be in a position to reverse any decision this year blocking ObamaCare.

The prospect of a new liberal court displays the dangers of placing all the conservative eggs in the judicial basket. Republicans today should heed the advice of their party's first, and greatest, president. "If the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court," Abraham Lincoln declared in his first inaugural address, "the people will have ceased, to be their own rulers, having to that extent, practically resigned their government, into the hands of that eminent tribunal."

Only conservative control of both the executive and legislative branches can replace ObamaCare with sensible, pro-market health-care reforms. Winning a Senate majority could give Republicans the leverage to moderate Obama's Supreme Court nominees in a second term. But it cannot override a presidential veto, one sure to greet any bills repealing ObamaCare. Conservative control of the White House and both houses of Congress will stop further adventures beyond the Constitution's limits, relieving the need for a judicial salvation that may never come. 3/29/2012