The Hapless Toad

The Atlantic Magazine, May 2005

Liberals talk as if the world will end if President Bush gets to name some new Supreme Court justices. How much of the danger is hype, and how much of it is real?

It’s mostly hype. In general liberals fear conservative judges far too much. In almost all areas, in fact, they dramatically overstate the stakes. Except, that is, in one—where the stakes are truly immense and they dramatically understate them.

Let me guess: abortion?

Nah. Liberals have been overselling the threat to reproductive rights for decades.

Civil rights?

No way. The foundations of modern civil-rights law are exceptionally secure. Conservative judges nibble around the edges sometimes, and people still debate the constitutionality of affirmative-action programs. But almost no one seriously argues about the basic meaning or legitimacy of core civil-rights protections.

Criminal law?

Hardly. True, the Supreme Court has curtailed the Warren era’s famed revolution in criminal procedure, and it has significantly rolled back review of state-court convictions. But this war is over; the conservatives have already won. And ironically, some of the conservatives themselves are now leading the Court’s aggressive rights-creation effort in criminal sentencing.

Okay, I give up. What is it?

The environment—and it’s no wonder you couldn’t guess. Although environmental groups sometimes raise issues in the confirmation process, environmental protection is not central to the fear-mongering of the liberal interest groups that oppose conservative judges. But the threat to basic environmental protections from conservative jurisprudence is broad-based and severe.

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