If you believe in judicial liberalism — which I sometimes do and, to be honest, sometimes don’t — the current direction of the Court is a little depressing. Tom Goldstein, Supreme Court analyst extraordinaire, points out that the conservatives on the Court are free to move at a measured pace in overturning liberal precedents, at least for a while:
For the moment, there is no reason to rush. Time permits a jurisprudence of not just originalism, or textualism, but actuarialism. The sand running through this hourglass will not expire for eight years.
Later in his term, President Obama will likely replace Justice Stevens with someone else on the left. If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left. Nothing changes.
It isn’t until the election of 2016 at the earliest that there is a real prospect for a significant shift to the left in the Court’s ideology. Actuarially, that election is likely to decide which President appoints the successors to Justices Scalia and Kennedy (both on the right, and both 73 now) and Justice Breyer (on the left, and 70 now). Absent an unfortunate turn of health, between now and the summer of 2017 there is no realistic prospect that the Court will turn back to the left. Over the course of that eight years, it is possible to take enough measured steps to the right to walk a marathon. Again, no need to rush.
Unless something happens to Scalia, Thomas, Roberts, Alito, or Kennedy in the next few years, the Court is on a slow rightward trajectory.
On the issue dearest to my heart — gay rights — it probably doesn’t mean much. Kennedy has been pretty pro-gay (Romer, Lawrence), but I don’t expect the Court to take up same-sex marriage for a while. It didn’t overturn the nation’s sodomy laws until only 13 states were left with such laws; the Court is too cautious to constitutionalize same-sex marriage rights at this point, when only six states allow such marriage.
What else could the Court tackle? Don’t Ask/Don’t Tell will be history in the next few years — I’m pretty sure Obama will get around to it after health care and energy are taken care of. DOMA (full faith and credit clause) is a possibility — which would be a sidelong way to rule on same-sex marriage. But I don’t think the Court will touch that right now. Again, the issue is just too volatile, and the Court generally knows when to stay out of things. (It has learned from abortion; would Roe v. Wade come out the same way today? Who knows; the opinion would at least be less intrusive if it were written today.)
Of course, I could be wrong. Issues have a way of showing up on the Court’s docket unexpectedly, especially since it only takes four Justices to vote to hear a case.
But for now, things seem to be in stasis, at least where gay rights are concerned. As for everything else — drifting right.