I wrote in a blog last year of the unfortunate tendency by some American liberals - I cited Ted Kennedy - to misunderstand the separation of powers and cleave to the view that a judge's role is to legislate.
This tendency to 'discover' in the Constitution rights not supported by its text, as well as the (arguably) worse tendency to ignore rights expressly defined in the text is very dangerous. It has stretched the US Constitution to breaking point.
What is needed is a Supreme Court that will apply the Constitution as it is written, not as they might wish it to have been written. Conservative blogs - my favourite is Redstate - are rife with people who understand this but also, sadly, with people who don't. The majority will continue to judge judges by outcomes. If they like a particular ruling, people will applaud it. But a more sophisticated analysis is called for if the US Constitution is to survive.
To give one example, some conservatives are calling for the appointment of anti-abortion judges. But this is to miss the point entirely. A fair reading of the Constitution will certainly lead to the repeal of Roe v Wade, the case which 'discovered' in the Constitution a hitherto secret and still invisible right to an abortion. This is right and proper, and returns the issue of abortion to state legislatures, where it belongs. But to appoint judges whose principal motivation is anti-abortion and not pro-Constitution opens the door to further abuse.
A judge whose compass is the outcome may be tempted, following the repeal of Roe, to discover another secret and invisible right - a right to life for the unborn. Any such discovery is likely to rupture the Constitution, perhaps permanently.
Replacing judges who legislate liberalism with judges who will legislate conservatism would be disastrous. There is still a chance to save the US Constitution, but it lies in appointing judges who will apply a consistent and text based judicial philosophy. If that happens, and social issues are returned to the legislatures of the several states, American political discourse can be restored to the real issues of elections in a constitution based on the separation of powers.
If it is established and accepted that judges are to be the legislators of America then the entire premise of constitutional government is over.
