[Today is the next installment of the First Monday series in conjunction with Alliance for Justice.  We are pleased to have Slate's Dahlia Lithwick here to discuss the recently concluded SCOTUS term and its implications.  The Alliance for Justice has put together a comprehensive SCOTUS summary report which you can read here.  (PDF)  And, with that, please welcome Dahlia -- as always, stay on topic and be polite.  Thanks! -- CHS]

First of all I want to thank Christy and the folks at Alliance for Justice for inviting me to participate in this terrific series. For all that the web often serves to fracture and polarize us, I am so happy to be involved in enterprises – like the First Monday series – that try to bring us together to talk. 

My topic today is the just-completed October 2007 term at the high court and its implications for the future. We can certainly discuss specific cases and trends if you all want to do that. But what I am most interested in today is the perennial question of whether liberals believe the composition of the court is a voting issue in November, and if they don’t why not?

My own impression, having covered the past two presidential elections is that most liberals simply don’t vote with the composition of the Supreme Court in mind at all, or that it ranks somewhere in their top 14 concerns, but rarely breaks into the top five. There is just no analogue on the political left for the focused, court-obsessed judge-watchers who populate the conservative base and holler “activist judge” every time a decision comes down with which they disagree.

I have some theories for why this is the case but look forward to yours: What the Supreme Court does is so removed from public life; the lag time between a court decision and its effects on the ground can be enormous; the court’s work is shrouded in jargon and secrecy; and despite the advancing years of the court’s liberal wing, it’s very hard to scare voters into caring about the Supreme Court with an election ad that warns:

Some justices may leave the court at some point soon. Some other justices may replace them and those new justices may decide some cases we don’t know about yet. And that might be bad for America.

Far easier to vote for the guy who promises to lower gas prices. 

But the real reason liberals don’t seem to worry much about the composition of the high court may simply be that we have been on the winning side of constitutional history for too long. We’re like that frog in the caldron of boiling water who just can’t seem to see how much hotter it’s become in just a few years.

The reason the conservative base is so very angry at the judiciary – decades of Republican appointees steadfastly but inexplicably refusing to overturn Roe v Wade – is the same reason liberals have become so complacent. We take new justices at their word that they won’t disturb settled precedent. We get sucked into the expert claims that the court decides too few cases (only 67 this term!) to really matter, or the characterization of those decisions as humble or narrow, even when many are nothing of the sort. We secretly believe that no matter who departs the court and who replaces them, the Warren-era achievements are somehow frozen in constitutional amber.

Or we forget to take off our Roe-colored glasses – the ones that lead us to think that the only issue that matters with respect to the high court is the right to abortion.

Maybe. Or maybe we have just been snookered into believing that whether we call it the Burger Court, the Rehnquist Court, or the Roberts Court, some secret force will ensure that it’s always a 4-4 court with a “swing justice” in the middle. That ignores the fact that this allegedly divided court is, as Prof. Geoffrey Stone has argued, is comprised of seven justices appointed by Republican Presidents; that each successive swing justice has been markedly more conservative than their predecessor; and that as Stone notes, “four of the current Justices are more conservative than any other Justice who has served on the Court in living memory.”

Justice John Paul Stevens himself has observed that every justice replaced in the past forty years, has been replaced by someone more conservative. Even if these labels – “conservative” and “liberal” are too rough to be truly descriptive when it comes to the cases, it’s hard to deny that the court has lurched to the right with every new appointment. But Democrats don’t seem to notice.

I have argued for a long time that one of the biggest drawbacks in the national debate about the courts is the absence of a really compelling judicial theory for Progressives. It’s so easy for John McCain to bang on about activist judges and strict construction and judicial humility. Even if they are nonsense words, they mean something to his supporters and even his detractors are aware that these terms – while hollow – signify a general principle of constraining unelected judges. But Barack Obama has been less clear and less persuasive in his attempts to explain what he’d like to see in a judge. Perhaps because we lack a crystalline definition of what liberal jurists do and how their decisions can be constrained, we prefer to change the subject when it comes to judicial vacancies and hope things don’t get any hotter.

So my question for you today is why? How might we turn the Court into a voting issue on the left? How do we talk about future justices without being labeled elitist and out-of-touch? And what might we do to change confirmation hearings into a meaningful process for vetting judicial candidates.

Thanks again for having me here today. I look forward to meeting you.

(YouTube above -- the "magic words" argument on issue ads between Toby, Bruno and Sam on West Wing.  One of my all-time favorite haggles over issues and the law...and loopholes.  -- CHS)