Steven Calabresi waxes hysterical and ludicrously implausible:
If Mr. Obama wins we could possibly see any or all of the following: a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government-financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants; ruinous shareholder suits against corporate officers and directors; and approval of huge punitive damage awards, like those imposed against tobacco companies, against many legitimate businesses such as those selling fattening food.
Admittedly, not all of these are equivalent. The idea that the Constitution says nothing about the size of punitive damage awards, for example, is held by such un-American Trotskyites as Antonin Scalia and Clarence Thomas, and it's hilarious to see Calabresi get finished complaining that Obama's judges will write their notions of economic policy into the Constitution and then claim that his own right-wing economic views can magically be found in penumbras and emanations from the 14th Amendment.
At any rate, some of these positions would in my view be defensible, others would not, and some are just crude, unserious demagogy. ("Mass freeing of criminal defendants?" "A federal constitutional mandate of affirmative action wherever there are racial disparities"?) But for most of these, the idea that the median Supreme Court justice would support such judgments after an Obama administration is silly. One can say the same thing for the idea that "the left" is poised to "capture" largely Republican-dominated federal courts. And the whole piece is based on idiotic claim that to disagree with Steven Calabresi's highly contestable views is to reject constitutionalism altogether.
Anyway, how does Calabresi justify his claims that Obama would pack the Supreme Court with justices that would have to turn right to see Thurgood Marshall? By, like many Drudge-driven hacks before him, quoting Obama's (perfectly accurate) claims that the Warren Court wasn't particularly radical, while leaving out some rather key information, such as his skepticism about the courts as tools of social reform. The idea that Obama is going to appoint a bunch of judges far to the left of the current mainstream is, for better or worse, almost entirely unfounded. And I somehow doubt that this attempt to create panic about the possibility that, after winning the popular vote in 4 out of 7 elections, the Democrats might get more than 2 Supreme Court appointments is going to be very politically effective either.
--Scott Lemieux
