That’s the limited scenario. Cato’s Pilon believes that replacing one liberal justice with a conservative could pave the way for a slow return to the Lochner Era — a pre-New Deal period when the Supreme Court invalidated minimum wage and child labor laws as unconstitutional.
“Yes, but not for a while,” the conservative scholar said. “Because there’s just too much to roll back. The court could find Social Security unconstitutional tomorrow, and that would be a good thing, but that would be suicidal for them because many people depend on it. We didn’t get into this mess overnight and we’re not going to get out of it overnight.”
Barnett — whose advocacy for smaller government has landed him in conflict with both liberals and conservatives — stresses that the conservative legal community’s goals are about principle and not a legislative agenda.
“I think that people who look at conservatives from the outside think this must be about a legislative agenda,” he said. “It would be a mistake to think that. We want to see the text of the Constitution interpreted to hold Congress to its enumerated powers.”
Yes, as a straightforward, technical legal question, it can be safely said that Article I of the Constitution enacted Mr. Robert Nozick’s Anarchy, State, and Utopia.
Of course, should the median vote of the Supreme Court shift to the right of Antonin Scalia, this would be entirely the fault of Senate Democrats, who if they wanted to could completely negate the appointment powers of the president with no negative consequences going forward. I mean, really, you think the Republicans would allow Obama get two Supreme Court justices confirmed? Please.