It's worth reading Cass Sunstein's article on how far the Court's swing to the right has been:
In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative. But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.
First we would have to chop off the Court's right wing, removing Scalia and Thomas and replacing them with Marshall and Brennan. Far to the left of anyone on the Court today, Marshall and Brennan believed that the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.
Next we would have to replace Kennedy with Blackmun. Blackmun was also to the left of anyone on the current Court. Fiercely protective of the right to privacy and opposed to the death penalty on constitutional grounds, Blackmun believed that the social-services agencies were constitutionally obliged to protect vulnerable children from domestic violence and that affirmative-action requirements were broadly acceptable.
Then we would have to leave Breyer, Stevens, Souter, and Ginsburg essentially as they are. All of a sudden, the four would be perceived as the Court's moderates rather than its liberals, operating as a group much like White, Stevens, Powell, and Stewart....The upshot of all these shifts is that what was once on the extreme right is now merely conservative. What was once conservative is now centrist. What was centrist is now left wing. What was once on the left no longer exists.
And though it seems a bit silly to actually write this, these differences matter:
The consequences are huge, both for constitutional law and for public debate. When Kennedy, rather than Stevens, looks like the moderate, people's sense of constitutional possibilities, and of what counts as sensible or, instead, extreme and unthinkable, shift dramatically. Not long ago, Marshall and Brennan served as the Court's visionaries, offering a large-scale sense of where constitutional law should move. They thought it preposterous that affirmative action should be treated the same as old-fashioned racial discrimination, and their views on that question put real pressure on the Court's center. They wrote in clear, bold strokes against decisions to invalidate campaign-finance restrictions and to restrict access to federal court; their opinions pressed the Court toward moderation on those subjects.
Read the whole thing, get depressed, etc.
