In yesterday's New York Times, Linda Greenhouse, that paper's legal op-ed columnist, was actually in the op-ed pages with a story about liberal lawprofs' dream to take back the Supreme Court.
It is close but yet so far. What is often overlooked in current commentary on the Court is that, while it is one vote away from being consistently and deeply conservative, it may also be one vote away from becoming perhaps the most liberal Court in our nation's history. The "left wing" of the Court - Breyer, Souter, Ginsburg and Stevens - has become an extremely cohesive - and relatively extreme - liberal voting bloc. This group is rigidly separationist in matters of church and state, believes that the abortion license invented in Roe v. Wade must be absolutely unrestricted, would not apply strict scrutiny (or anything worthy of the term) to supposedly "benign" racial classifications, etc. Were they to become the dominant wing of the Court, the shift in direction would be every bit as extraordinary - I would argue more so - than the supposed "conservative victory" of the Roberts court.
One vote away and the Democrats with a great chance to take the White House. Why so glum?
Part of the problem is demographic. The liberal bloc is older than the conservative bloc. It seems inconceivable that Stevens and Ginsburg will still be on the court following the next presidential term. Since you'd be hard pressed to find a qualified candidate for the Court more liberal than these two - much less get him or her confirmed - much of what the a Democratic president would do would amount to maintenance.
But if Anthony Kennedy retires? Given his self perceived and much enjoyed role as America's Conscience, that will likely happen only by the hand of God. But if he does hang it up with the Dems in power, there could be an opportunity to create a positively Scandanavian majority.
The problem will, of course, be confirmation. Just as E.J. Dionne says that the Dems should do everything they can to prevent another John Roberts or Sam Alito, there is no chance that the GOP will roll over for a doctrinaire lefty like they did when Clinton appointed Ginsburg. She was eminently qualified for the court but every centimeter as far to the left as Robert Bork was to the right. In response to Bork's nomination, the Dems radically changed the Senate's role in confirmation, adding a verb to the English language (to "bork"). The GOP reverted to the more traditional stance when Ginsburg was nominated. That will never happen again.
So the liberal lawprofs recognize that they must build a public taste for their particular form of justice. How do they do that? This is where the Greenhouse piece gets interesting.